Bargaining with the Devil

by Robert Mnookin

  4. In the summer of 2000, an official of the State department under the Clinton administration testified before Congress that the United States had let the Taliban “know in no uncertain terms that we will hold [the Taliban government] responsible for any terrorist acts undertaken by Bin Laden.” “The Taliban: Engagement or Confrontation?” Hearing Before the Committee on Foreign Relations, United States Senate 106-868, p.6.

  5. Choosing to negotiate would also have posed significant domestic political costs for the Bush administration, although my defense of Bush’s decision did not attach significant weight to this factor. The American public was shocked and outraged by the attacks. Many Americans wanted retribution. Few were likely to support the kind of negotiation the Taliban had in mind: a conversation about which Islamic court might try bin Laden if he were found.

  6. In 1998 bin Laden had published in an Arab newspaper in London a fatwa calling for jihad. It stated that “to kill Americans and their allies, both civil and military, is an individual duty of every Muslim who can, in any country where this is possible, until the Aqsa Mosque [in Jerusalem] and the Haram Mosque [in Mecca] are freed from their grip, and until their armies, shattered and broken-winged, depart from all the lands of Islam.” Bernard Lewis, “Jihad vs. Crusade: A Historian’s Guide to the New War,” Wall Street Journal, September 27, 2001.

  7. While based on a real case that I mediated, the names of the people, companies, and product have been changed to protect confidentiality.

  1: AVOIDING COMMON TRAPS

  1.See Hiroshi Ishida, “Class Structure and Status Hierarchies in Contemporary Japan,” European Sociological Review 5(1) (1989).

  2.In the Introduction I acknowledged that evil is a slippery term. That is why I have chosen explicitly to offer a definition. My definition exposes the outlook from which I make my own personal judgments.

  The notion of evil, and the definition of good and evil, raises difficult questions central to moral philosophy. Moral philosophy is an active academic discipline, with a rich history that extends back as far as ancient Greece. It is not my discipline. I am not even tempted to offer an elaborate academic defense of my definition. To do so would probably require a book in itself and would involve the exploration of metaphysical questions well beyond my knowledge or training. Nor do I think an elaborate defense of my definition is necessary to achieve my purposes in writing this book.

  3.See Philip G. Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (New York: Random House, 2007). The abuses and torture in Abu Ghraib prison confirm a critical finding of social psychologist Philip Zimbardo: situational influences such as social role and respect for figures of authority and peer pressure can lead otherwise decent people to dehumanize their enemy. Zimbardo also reviews the famous Milgram experiments.

  4.Lee Ross, “The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process,” Advances in Experimental Social Psychology 10 (1977).

  5.See Harold Kelley and John Michella, “Attribution Theory and Research,” Annual Review of Psychology 31 (1980): 477–78.

  6.J. St. B. T. Evans, “Dual-Processing Accounts of Reasoning, Judgment, and Social Cognition,” Annual Review of Psychology 59 (2008); J. St. B. T. Evans, “In Two Minds: Dual-Process Accounts of Reasoning,” Trends in Cognitive Sciences 7(10) (2003); P. C. Wason and J. St. B. T. Evans, “Dual Processes in Reasoning,” Cognition 3(2) (1975).

  7.Paul Slovic, “ ‘If I look at the mass, I will never act’: Psychic Numbing and Genocide,” Judgment and Decision Making 2(2) (2007): 79–85.

  8.See Malcolm Gladwell, Blink: The Power of Thinking Without Thinking (Boston: Little, Brown, 2005).

  9.One of the four dimensions of personality type measured by the popular Myers-Briggs Type Indicator (MBTI) is “Thinking versus Feeling,” which corresponds roughly to one’s tendency toward reasoned versus intuitive judgments. For a description of the MBTI and an evaluation of its effectiveness, see Marcia Carlyn, “Assessment of Myers-Briggs Type Indicator,” Journal of Personality Assessment 41(5) (1977): 461–73; Robert McCrae and Paul Costa, “Reinterpreting the Myers-Briggs Type Indicator from the Perspective of the 5-Factor Model of Personality,” Journal of Personality 57(1) (1989): 17–40.

  10.See Evans, “Dual-Processing Accounts of Reasoning, Judgment, and Social Cognition.”

  11.Steven Erlanger, “In Gaza, Hamas’s Insults to Jews Complicate Peace,” New York Times, April 1, 2008.

  2: BARGAINING AND ITS ALTERNATIVES

  1. “Sometimes we admire the rational actor for his discipline; sometimes we revile him for his ruthlessness.” Don Herzog, Cunning (Princeton, N.J.: Princeton University Press, 2006), p. 11.

  2. Patricia Pattison and Daniel Herron, “The Mountains Are High and the Emperor Is Far Away: Sanctity of Contract in China,” American Business Law Journal 40 (2003): 491.

  3. Jennifer Fan, “Comment: The Dilemma of China’s Intellectual Property Piracy,” UCLA Journal of International Law & Foreign Affairs 4 (1999).

  4. Dan Rosen and Chikako Usui, “Japan: The Social Structure of Japanese Intellectual Property Law,” UCLA Pacific Basin Law Journal 13 (1994).

  5. John Owen Haley, “The Myth of the Reluctant Litigant,” Journal of Japanese Studies 4(2) (1978): 359–90.

  6. I also acknowledge that Spock’s character has evolved since his television debut in 1966. He initially struggled between his emotional human side and his logical Vulcan side. But eventually logic won out, and it’s this Spock I refer to throughout the book.

  7. If Bikuta makes a deal with Pressure-Measure, your odds of winning on the jurisdictional issue will be vastly improved because the corporation will have done two deals in Silicon Valley.

  8. In addition to assessing the value of each outcome, one should also assess the expected value, which is the value of the outcome (positive or negative) multiplied by the probability of its occurrence. If one is risk neutral, the expected value of the litigation, not the best outcome, will be the yardstick for litigation.

  9. Even when you conclude that it is very unlikely there will be a negotiated resolution that is better than your BATNA, you may still conclude that you would find it beneficial to negotiate for diplomatic reasons: in order to appease constituencies or to prove that all “peaceful” methods have been exhausted prior to using a coercive approach.

  10. Robert H. Mnookin, Scott R. Peppet, and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Cambridge, Mass.: Harvard University Press, 2000), pp. 104–5.

  11. Constance C. R. White, “Patterns,” New York Times, October 29, 1996.

  12. See “Postal Service Said to Beckon to Ex-Air Controllers,” New York Times, August 20, 1982.

  3: RECOGNITION, LEGITIMACY, AND MORALITY

  1. For a philosophical argument that the morality of an action depends on its consistency with a person’s sense of self or identity, see Christine Korsgaard, Self-Constitution: Agency, Identity, and Integrity (New York: Oxford University Press, 2009).

  2. See J. D. Greene et al., “The Neural Bases of Cognitive Conflict and Control in Moral Judgment,” Neuron 44(2) (2004); J. D. Greene et al., “An FMRI Investigation of Emotional Engagement in Moral Judgment,” Science 293 (2001).

  3. Jonathan Haidt, “ ‘Dialogue Between My Head and Heart’: Affective Influences on Moral Judgment,” Psychology Inquiry 13(1) (2002): 54–56, citing R. B. Zajonc, “Feeling and Thinking: Preferences Need No Inferences,” American Psychologist 35(2) (1980): 151–75. Haidt, like Hume, is of the view that the foundation of morals is in sentiment or feelings. Other psychologists like Forgas believe that there is an interaction between the head and the heart, and that depending on the context and the stakes, feelings can infuse moral judgments to a greater or lesser extent.

  4. My discussion of Sharansky relies primarily on his memoir, and the quotations in the remainder of this chapter, unless otherwise indicated, are from that source. Natan Sharansky, Fear No Evil: The Clas
sic Memoir of One Man’s Triumph Over a Police State, trans. Stefani Hoffman (New York: Public Affairs, 1998).

  5. Regents of the University of California, “Science, Faith and Survival, with Natan Sharansky,” Conversations with History, Institute of International Studies (Berkeley, Calif.: UCTV, October 25, 2004).

  6. At the December 1, 1952, Politburo session, Stalin announced, “Every Jewish nationalist is a potential agent of the American intelligence. Jewish nationalists think that their nation was saved by the USA. … Among doctors, there are many Jewish nationalists.” The next month, shortly before Stalin’s death, TASS announced the “unmasking” of an alleged terrorist group of doctor-prisoners, a majority of whom were members of the Jewish Zionist organization. These doctors were accused of being spies and plotting to murder the Soviet leadership. Initially thirty-seven were arrested, but soon there were hundreds of arrests. Many Soviet Jews were dismissed from their jobs, some were arrested and sent to the Gulag, and a few were executed. There were show trials and there was much anti-Semitic propaganda. Wikipedia contributors, “Stalin’s antisemitism,” Wikipedia, The Free Encyclopedia, http://en.wikipedia.org/w/index.php?title=Stalin%27s_antisemitism&oldid=323284710 (accessed November 1, 2009).

  7. Regents of the University of California, “Science, Faith and Survival, with Natan Sharansky.”

  8. I briefly interviewed Sharansky during his visit to Harvard in the fall of 2008 and he confirmed that his decision to refuse to negotiate was made intuitively, not analytically.

  9. Sharansky’s decision could, of course, be expected to impose extra burdens on his family, especially his wife, Avital. But Sharansky knew that Avital shared his passionate commitment to the Soviet Zionist cause.

  4: RUDOLF KASZTNER

  1. Rudolf is the German and English equivalent of Rezsö. Kasztner’s last name is sometimes spelled Kastner, which is the Anglicized spelling. After World War II, when Kasztner moved to Israel, he used his Jewish first name, Israel—the name given to Jacob after he defeated the Angel of Darkness in battle.

  2. There were seventeen thousand Jews in Cluj in 1941. See Yechiam Weitz, The Man Who Was Murdered Twice: The Life, Trial, and Death of Dr. Israel Kasztner (Jerusalem: Keter, 1995) (Hebrew original), p. 13.

  3. During his lifetime, the town was repeatedly transferred back and forth between Romania and Hungary. Today it is part of Romania and is called Cluj-Napoca.

  4. Anna Porter, Kasztner’s Train: The True Story of an Unknown Hero of the Holocaust (New York: Walker, 2007), pp. 15–17.

  5. Ibid., p. 15.

  6. Ibid.

  7. Ladislaus Lob, Dealing with Satan: Rezsö Kasztner’s Daring Rescue Mission (London: Jonathan Cape, 2008), p. 73. Fulop Freudiger, a member of the Budapest Jewish Council, later characterized Kasztner as “idealistic, competent, a man of vision,” yet at the same time “dictatorial in nature, jealous of the successes of others and terribly lax vis-à-vis deadlines and compliance with agreements.” See Szabolcs Szita, Trading in Lives? Operations of the Jewish Relief and Rescue Committee in Budapest, 1944–1945 (Budapest: Central European University Press, 2005), p. 147.

  8. Porter, Kasztner’s Train, p. 15.

  9. Ibid. Porter also writes of Kasztner: “Much to the consternation of his readers in [Cluj], he interviewed members of the [Romanian fascist] Iron Guard, including dedicated anti-Semites who were keen to share their ideas. Even then, he thought it was wise to know the enemy.”

  10. Ibid., p. 22.

  11. Ibid., p. 16.

  12. Nazi Germany earlier supported Hungary in 1938 and 1940 in re-annexing Hungarian territory lost after World War I. Hungary entered a formal military alliance with Nazi Germany in November 1940, and its army joined with that of Germany in attacking the Soviet Union in 1941.

  13. Ladislaus Lob, Dealing with Satan, p. 52.

  14. Ibid. The full Hebrew name of the organization was “Vaadat Ezra Ve’Hazalah.”

  15. Ibid., p. 53.

  16. Ibid., pp. 37–38.

  17. Ibid., p. 37.

  18. Ibid., pp. 36–37.

  19. Yehuda Bauer, Jews for Sale? Nazi-Jewish Negotiations, 1933–1945 (New Haven, Conn.: Yale University Press, 1994), p. 156.

  20. Lob, Dealing with Satan, pp. 33–34.

  21. Through a source in the German army’s intelligence unit, Kasztner and Brand learned about the Nazis’ plan to invade and occupy Hungary several days before the invasion. See Alex Weissberg, Desperate Mission—Joel Brand’s Story (New York: Criterion, 1958), pp. 62–66.

  22. As it turned out, however, the bribe probably played little to no role. In the summer of 1942, the Reich stopped the transports from Slovakia under intense pressure from the Slovak government, which needed the Jews to keep its economy running. Lob, Dealing with Satan, p. 56. Also see generally Yehuda Bauer, Jews for Sale? pp. 91–101.

  23. This grand scheme was sometimes called the “Europa Plan,” in which the coordinated forces of “World Jewry” would pay the Nazis $2 million to stop deportations of Jews in all of occupied Europe, with the exception of Poland. For a detailed scholarly discussion of these negotiations, see Bauer, Jews for Sale? pp. 79–90.

  24. Just days before, Stern had played poker with Admiral Horthy, the regent of Hungary, whom he viewed as a personal friend. Porter, Kasztner’s Train, p. 88.

  25. Porter, Kasztner’s Train, p. 98, relying on Ernö Szilágyi and Attila Novák, Ismeretlen Memoár a Magyar Vészkorszakról (Budapest: Akadémiai, 2005).

  26. Immediately after the war, in 1946, Kasztner wrote a report on behalf of the Relief and Rescue Committee of his wartime activities. Fifteen years later it was published in German as Der Kasztner-Bericht über Eichmanns Menschenhandel in Ungarn (Munich: Kinder, 1961). I have an unpublished English translation entitled “The Report of the Jewish Rescue Committee from Budapest 1942–1945” (on file with author). The “Kasztner Bericht” is summarized in English in Szita, Trading in Lives, pp. 204–7, where it is described as an “authoritative” description of Kasztner’s remarkable activities, notwithstanding his “proclivity for exaggeration and self-vindicating analysis”; “partiality for conclusions that justify his own actions”; and “propensity for self-aggrandizement.”

  In his postwar report Kasztner wrote that Stern found it difficult to quickly adapt to the new situation caused by the Nazi occupation and that his tragedy, and that of the Hungarian Jewry, was that the German occupation disconnected him from the aristocratic-conservative element of the Hungarian leading class and he was thus left isolated. See Kasztner, “The Report of the Jewish Rescue Committee,” pp. 38–39. Joel Brand noted that Stern, who had completely assimilated himself with his Hungarian compatriots, later regretted not having supported the Zionists from “the very beginning.” See Weissberg, Desperate Mission, p. 77. See also Porter, Kasztner’s Train, pp. 98–99.

  27. Porter, Kasztner’s Train, p. 107.

  28. Weissberg, Desperate Mission, p. 69; Kasztner, “The Report of the Jewish Rescue Committee,” p. 84.

  29. Weissberg, Desperate Mission, p. 73.

  30. Kasztner noted later that “one had to play for time,” bearing in mind that the Allies’ invasion was approaching. Kasztner, “The Report of the Jewish Rescue Committee,” p. 85.

  31. The Jewish Agency was inured to Nazi extortions and had previously bribed German officials in Poland, Bulgaria, and France. Porter, Kasztner’s Train, p. 143.

  32. In addition to or in lieu of negotiating with the Nazis, it was of course possible to try to negotiate with the Hungarian authorities to see that no Jews were deported. In fact, throughout the German occupation various Jewish leaders tried to persuade the Hungarian government to take steps to protect Hungarian Jews.

  33. Weissberg, Desperate Mission, p. 73. See also Porter, Kasztner’s Train, pp. 108–9; and Kasztner, “The Report of the Jewish Rescue Committee,” p. 86.

  34. Porter, Kasztner’s Train, p. 108.

  35. Weissberg, Desperate Mission, p. 75.

  36. “Th
ese privileges were not always respected by German or Hungarian gangs, but on the whole they enabled Kasztner and his associates to do their undercover work without constant threat of arrest and deportation.” Lob, Dealing with Satan, p. 58. Other sources suggest that the Relief and Rescue Committee leaders got these immunity passes at the next meeting, which took place a week later. Weissberg, Desperate Mission, p. 82.

  37. Ibid., p. 75.

  38. Ibid.

  39. Ibid., p. 76.

  40. This train is more commonly referred to as the “Bergen-Belsen Train,” named after the German concentration camp that was its initial stop.

  41. Weissberg, Desperate Mission, p. 77; Kasztner, “The Report of the Jewish Rescue Committee,” p. 89.

  42. Randolph L. Braham, “What Did They Know and When?” in The Holocaust as Historical Experience, eds. Yehuda Bauer and Nathan Rotenstreich (New York: Holmes & Meier, 1981), p. 117, quoting the following Kasztner testimony: “Toward the end of April 1944, the German military agents informed me that they had finally decided on the total deportation of Hungarian Jews. … An agreement was made between Hungary and Slovakia for the transfer of deportation trains from Hungary to Auschwitz. I also received information from Auschwitz that they were preparing there to receive the Hungarian Jews.”

  43. Porter, Kasztner’s Train, pp. 116–17.

  44. Ibid.

  45. When Kasztner complained to Hansi Brand, Joel Brand’s wife, that Wisliceny was breaking his word, she responded that an SS officer couldn’t be expected to keep his word. Porter, Kasztner’s Train, p. 117.

  46. Porter, Kasztner’s Train, p. 120, relying also on Brand’s testimony at the Eichmann trial.

  47. Weissberg, Desperate Mission, pp. 93–94.

  48. Kasztner, “The Report of the Jewish Rescue Committee,” p. 113.

  49. Szita, Trading in Lives? p. 65.

  50. Kasztner, “The Report of the Jewish Rescue Committee,” pp. 102–3.

  51. Apparently, a few days later Wisliceny explicitly confirmed to Kasztner that all the Jews in Hungary would be deported and this plan could not be stopped. See Braham, “What Did They Know and When?” p. 117, quoting the following Kaszt-ner testimony: “I was allowed … to go to [Cluj] and contact … Wisliceny. This was approximately May 3, 1944. … A few days later I visited Wisliceny at his home in Budapest. He told me that it had finally been decided—total deportation.”