The following article by Harvard Law School Professor Robert Mnookin appeared in the February 17, 2010, edition of Foreign Policy magazine.

Bargaining with the devil

by Robert Mnookin

If Barack Obama wants to answer some of his administration’s toughest foreign-policy questions, he need only ask himself this: Should I, the U.S. president, bargain with the devil? To “bargain” would mean making a deal — trying to resolve a conflict through negotiation — rather than fighting it out or resisting. The “devil” would be an adversary who has intentionally harmed you in the past or appears willing to harm you in the future. In short, someone who is not trustworthy — whose behavior might even be evil.

Today, the “devil” is in Afghanistan and Iran. And Obama is finding that the answer of whether to make a deal is, “Not always, but more often than you feel like.”

Let’s start with Afghanistan, where President Hamid Karzai says he is prepared to negotiate with Taliban leader Mullah Omar. After the September 11 attacks, then-President George W. Bush demanded that Mullah Omar shut down al Qaeda’s camps and turn over Osama bin Laden and his lieutenants or face the full brunt of U.S. military might. Mullah Omar asked to negotiate, and Bush refused. Instead, the United States invaded Afghanistan and ousted the Taliban.

Now the tides have turned. Karzai’s offer to sit down with even the most notorious Taliban leaders comes with the hope that talking will promote peace and reconciliation or even end the conflict. The Pentagon is also financing its own program to bring “moderate” Taliban in from the cold. But there’s one problem: Most Americans believed in 2001 that the Taliban had committed evil acts, and not much has changed.

The question at hand is whether the “evil” nature of the Taliban (or in the case of Iran, the clerical regime) is relevant to Obama’s decision. Cutting deals entails giving the devil something he wants. But it can also lead to getting something you want. Hence, there is often a tension between the pragmatic course and the principled one.

I’ve been thinking about this question a lot lately, having just written a book on precisely the same topic. I’ve sought answers across a broad range of contexts, from business and family disputes to international conflicts. And as a specialist in conflict resolution, I have a few thoughts that might be useful.

First, I am wary of categorical answers to the question of whether to negotiate or resist. In my field of dispute resolution, people tend to think you should always be willing to negotiate (otherwise there wouldn’t be much resolution!). But many take the opposite approach: The Faustian legend suggests you should never negotiate with the devil, at any price. I don’t buy such absolutes, especially because my two greatest political heroes of the 20th century took opposite paths. In May 1940, Winston Churchill refused to negotiate with Adolf Hitler, even though the Nazis had overrun Europe and were about to attack a fragile Britain. In 1985, on the other hand, Nelson Mandela decided to initiate negotiations — from prison — with South Africa’s apartheid government. Both men made the “right” choice.

So if there is no absolute answer, how should one decide? There are five questions that I have found to help guide a particular case: What are the interests at stake? What are the alternatives to negotiation? What are the costs of negotiation? Is there a potential deal that both parties would agree to? Could such a deal be implemented?

In 2001, I asked myself those five questions about Afghanistan and agreed with Bush’s decision not to negotiate with the Taliban. I thought it nearly inconceivable that paramount U.S. security interests could be achieved through talks because it seemed doubtful that the Taliban had the will or capacity to shut down their training camps and turn over terrorist culprits. I also thought the costs of entering into negotiations with the Taliban regime were unacceptably high; doing so would undercut the United States’ capacity to build an international coalition to resist terrorism. I thought the use of force was morally and legally justifiable, so I didn’t have to make any hard choices between pragmatism and principle.

Today the question is more complicated. The Taliban is not a monolithic group with central control. It’s less clear with whom one would negotiate — or about what. So far, I think the Obama administration has gotten it right by distinguishing among three categories of Taliban and answering the question differently for each one.

The first group of Taliban is made up of rank-and-file individuals who are not ideologically committed to any grand cause. These are the so-called “$10 Taliban” — opportunists who, it is hoped, might lay down their arms if they are offered $11. The second group is made up of Pashtun tribal leaders with “moderate” political goals, including security and order. The hope is that they and their followers might agree to join in a political process that could lead to improved local governance.

Although I am not terribly optimistic about the prospects of “flipping” these two groups, I see nothing wrong with trying to engage them. It should simply be remembered that if they think the United States won’t be in Afghanistan for long, any alliance they make with U.S. forces is likely to be unstable.

The third Taliban group — the least promising for negotiations — is made up of ideologues whose primary goal is to regain national power and reimpose an extreme version of Islamic law. As long as they think time is on their side, concessions on their part don’t make much sense. This is certainly true for Mullah Omar, who flatly turned down Karzai’s invitation to engage in any form of negotiation as long as there are foreign troops on Afghan soil. I would not negotiate with Mullah Omar or the other Taliban leaders from this third group. They seem unlikely to give ground, so it makes more sense to try to defeat them.

But in fact the more troubling question is what might happen if Mullah Omar does become open to serious bargaining and a deal seems enforceable. What the Taliban leadership wants is political power, and any deal with Mullah Omar would involve a form of powersharing that at a minimum gives the Taliban some regional control. Suppose they said to Washington, “Give us regional power, and we promise not to harbor terrorists on our soil.” How should the United States respond? It might serve pragmatic interests better than a protracted war, but it would allow the Taliban to once again shut down all schools for girls and brutally repress dissent. U.S. officials shouldn’t delude themselves: They might make that deal, but it would be a Faustian bargain.

Iran is an even tougher case. Obama has already said that he thinks there are vital U.S. interests at stake due to the risk of nuclear proliferation and the danger Iran could pose to its neighbors. The United States should not take the use of force off the table. The perception that you have the will (and the capacity) to resist can often influence the other side’s perception of their risks — should they refuse to negotiate.

At the same time, no one seriously thinks that Washington has a very good military option, given the complex situation in the region, the difficulty of the task, and the limited intelligence available on Iran’s nuclear facilities. Nor are economic sanctions likely to have much of an impact without the cooperation of China and Russia, and so far the Chinese haven’t been very cooperative.

The bad news in Iran is that Washington has a very limited ability to influence internal events. But the good news is that internal opposition to the regime is growing. That’s why the United States should push for tighter economic sanctions: to signal support to these dissenters. Yes, such a move would have real costs for ordinary Iranians. Still, I don’t buy the argument that stricter sanctions would weaken the democratic opposition or make it easier for the ayatollahs to demonize the West. As I underscore in my book, weighing the expected costs and benefits of various alternatives nearly always involves uncertain predictions about the other side’s response.

These are the questions that a pragmatist must manage, and they come with inherent and profound tensions. I applaud Obama’s willingness to negotiate with anyone, no matter how odious their acts, if it serves the national interest. That’s my inclination, too. But I also applaud his administration’s courage in acknowledging that there are evil regimes in the world — and that sometimes military force is simply necessary.