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“What is different with systemic corruption is that it’s the expected behavior,”

“These expectations make it very difficult for all individuals, actually, to stand against corruption, because it’s very costly in all different ways to resist that kind of system.”

Those who refuse to participate in the parallel economy of favors and bribes get passed over for promotion, cut off from benefits, and frozen out of power.

The result is a system where power and wealth accrue to those willing to play the corruption game, and those who are not get left behind.

Corruption “serves as a regressive tax, it’s like Robin Hood in reverse,” Persson told me. “All the resources are moved to the top of the system, to the great cost of the majority of the population.”

But why did corruption in Russia get that bad? The answer, and maybe a counterintuitive one, is in democratization.

There was corruption in the Soviet Union. But after its dissolution in 1991, the sudden explosive growth of freedom of expression and freedom of association in Russia and the other former Soviet countries and satellites brought new opportunities, not just for political and economic development, but for crime and corruption.

“Freedoms of expression and association don’t only have to be used for good things, they can be used for illegal activities, too,” McMann said. “When people can more easily get together and talk, that enables them to actually plan corrupt activity.”

That wouldn’t have been so bad if democratization had also brought in checks on executive power, an independent judiciary to investigate and prosecute crimes. “In order to have capitalism have functioning markets, you also need to build institutions. You need banks that can provide credit, you need a strong legal system that will protect property.”

Estonia followed that path. After the Soviet Union fell, Estonia’s new, democratically elected parliament strengthened the judiciary and introduced new checks on executive power. There, corruption fell.

But in Russia, the government heeded Western advisers’ urging to get the state out of the economy as much as possible in order to let free markets flourish. Institutions and constraints fell by the wayside. In that vacuum, the parallel structures of corruption flourished, crowding honest politicians out of government and honest businesses out of the market.

By the late 1990s, official corruption had flourished at every level of the government. In 1999, as President Boris Yeltsin’s presidency began to weaken, elites pressured him to leave office on their terms. If Yeltsin would anoint their handpicked successor, they would ensure that he and his family did not face prosecution for misappropriation of government funds.

“Our text is the best possible balance,” he said, “a balance which is powerful yet delicate, which will enable each delegation, each group of countries, with his head held high, having achieved something important.

negotiators from countries representing a self-described “high-ambition coalition” walked into the United Nations plenary session shortly before noon, they were swarmed by cheering

Mr. Ban has said there is “no Plan B” if this deal falls apart

But it is not yet certain that the draft accord will receive the unanimous support required for it to become legally binding.

But it is not yet certain that the draft accord will receive the unanimous support required for it to become legally binding.

A more likely course of events, Ms. Morgan and others said

They would then engage in sideline talks, while Mr. Fabius and his envoys negotiate to win their support.

Poorer countries had pushed for a legally binding provision requiring that rich countries appropriate a minimum of $100 billion a year to help them mitigate and adapt to the ravages of climate change. In the final deal, that $100 billion figure appears only in a preamble, not in what would be the legally binding portion of the agreement.

The stated goal of the agreement is to begin to level off the rise in fossil fuel emissions enough to stave off an increase in atmospheric temperatures of 2 degrees Celsius (3.6 degrees Fahrenheit)

More recent scientific reports have concluded that even staving off that amount of warming will not save the planet from many of the worst effects of climate change, particularly rising sea levels. Thus, the text was expected to include a reference to reducing emissions enough to stave off a warming of 1.5 degrees Celsius (2.7 degrees Fahrenheit).

Vulnerable low-lying island states have pushed for the inclusion of the more stringent target,

At the core of the agreement are a set of individual plan

n their own, those plans will lower greenhouse gas emissions only about half as much as is necessary

The accord also requires “stock-taking” meetings every five year

It also sets forth language requiring countries to monitor, verify and publicly report their levels of emissions.

In the end, the final draft requires all countries to use the same system to report their emissions, but it allows developing nations to report fewer details until they build the ability to better count their carbon emissions

Some elements of the accord would be voluntary, while others would be legally binding. That hybrid structure was specifically intended to ensure the support of the United States

Such a proposal would be dead on arrival in the Republican-controlled Senate, where many lawmakers question the established science of climate change, and where even more hope to thwart President Obama’s climate change agenda.

As a result, all language in the accord relating to the reduction of carbon emissions is essentially voluntary

“This agreement is highly unlikely to trigger any legitimate grounds for compelling Senate ratification,” said Paul Bledsoe, a climate change official in the Clinton administration.

Representatives of 195 countries reached a landmark climate accord on Saturday that will, for the first time, commit nearly every country to lowering planet-warming greenhouse gas emissions to help stave off the most drastic effects of climate change.

final deal did not achieve all that environmentalists, scientists and some countries had hoped for

About all this there is no essential disagreement. The most hideous enemy of native Americans was not the white man and his weaponry, concludes Alfred Crosby,"but the invisible killers which those men brought in their blood and breath." It is thought that between 75 to 90 percent of all Indian deaths resulted from these killers.

As an example of actual genocidal conditions, Stannard points to Franciscan missions in California as"furnaces of death."

The missionaries had a poor understanding of the causes of the diseases that afflicted their charges, and medically there was little they could do for them. By contrast, the Nazis knew exactly what was happening in the ghettos, and quite deliberately deprived the inmates of both food and medicine; unlike in Stannard’s"furnaces of death," the deaths that occurred there were meant to occur.

True, too, some colonists later welcomed the high mortality among Indians, seeing it as a sign of divine providence; that, however, does not alter the basic fact that Europeans did not come to the New World in order to infect the natives with deadly diseases.

But Chardon's journal manifestly does not suggest that the U.S. Army distributed infected blankets, instead blaming the epidemic on the inadvertent spread of disease by a ship's passenger. And as for the"100,000 fatalities," not only does Thornton fail to allege such obviously absurd numbers, but he too points to infected passengers on the steamboat St. Peter's as the cause. Another scholar, drawing on newly discovered source material, has also refuted the idea of a conspiracy to harm the Indians.

Similarly at odds with any such idea is the effort of the United States government at this time to vaccinate the native population. Smallpox vaccination, a procedure developed by the English country doctor Edward Jenner in 1796, was first ordered in 1801 by President Jefferson; the program continued in force for three decades, though its implementation was slowed both by the resistance of the Indians, who suspected a trick, and by lack of interest on the part of some officials. Still, as Thornton writes:"Vaccination of American Indians did eventually succeed in reducing mortality from smallpox."

The disparity in estimates is enormous. In 1928, the ethnologist James Mooney proposed a total count of 1,152,950 Indians in all tribal areas north of Mexico at the time of the European arrival. By 1987, in American Indian Holocaust and Survival, Russell Thornton was giving a figure of well over 5 million, nearly five times as high as Mooney’s, while Lenore Stiffarm and Phil Lane, Jr. suggested a total of 12 million. That figure rested in turn on the work of the anthropologist Henry Dobyns, who in 1983 had estimated the aboriginal population of North America as a whole at 18 million and of the present territory of the United States at about 10 million.

Still, even if up to 90 percent of the reduction in Indian population was the result of disease, that leaves a sizable death toll caused by mistreatment and violence. Should some or all of these deaths be considered instances of genocide?

Despite the colonists' own resort to torture in order to extract confessions, the cruelty of these practices strengthened the belief that the natives were savages who deserved no quarter

A second famous example from the colonial period is King Philip’s War (1675-76).

The war was also merciless, on both sides. At its outset, a colonial council in Boston had declared"that none be Killed or Wounded that are Willing to surrender themselves into Custody."

But these rules were soon abandoned on the grounds that the Indians themselves, failing to adhere either to the laws of war or to the law of nature, would"skulk" behind trees, rocks, and bushes rather than appear openly to do" civilized" battle. Similarly creating a desire for retribution were the cruelties perpetrated by Indians when ambushing English troops or overrunning strongholds housing women and children.

Before long, both colonists and Indians were dismembering corpses and displaying body parts and heads on poles. (Nevertheless, Indians could not be killed with impunity. In the summer of 1676, four men were tried in Boston for the brutal murder of three squaws and three Indian children; all were found guilty and two were executed.)

In 1704, this was amended in the direction of"Christian practice" by means of a scale of rewards graduated by age and sex; bounty was proscribed in the case of children under the age of ten, subsequently raised to twelve (sixteen in Connecticut, fifteen in New Jersey). Here, too, genocidal intent was far from evident; the practices were justified on grounds of self-preservation and revenge, and in reprisal for the extensive scalping carried out by Indians.

To force the natives into submission, Generals Sherman and Sheridan, who for two decades after the Civil War commanded the Indian-fighting army units on the Plains, applied the same strategy they had used so successfully in their marches across Georgia and in the Shenandoah Valley. Unable to defeat the Indians on the open prairie, they pursued them to their winter camps, where numbing cold and heavy snows limited their mobility. There they destroyed the lodges and stores of food, a tactic that inevitably resulted in the deaths of women and children.

As the United States expanded westward, such conflicts multiplied. So far had things progressed by 1784 that, according to one British traveler,"white Americans have the most rancorous antipathy to the whole race of Indians; and nothing is more common than to hear them talk of extirpating them totally from the face of the earth, men, women, and children."

To understand all is hardly to forgive all, but historical judgment, as the scholar Gordon Leff has correctly stressed,"must always be contextual: it is no more reprehensible for an age to have lacked our values than to have lacked forks."

According to Article II of the convention, the crime of genocide consists of a series of acts" committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such" (emphases added). Practically all legal scholars accept the centrality of this clause.

During the deliberations over the convention, some argued for a clear specification of the reasons, or motives, for the destruction of a group. In the end, instead of a list of such motives, the issue was resolved by adding the words"as such"—i.e., the motive or reason for the destruction must be the ending of the group as a national, ethnic, racial, or religious entity. Evidence of such a motive, as one legal scholar put it,"will constitute an integral part of the proof of a genocidal plan, and therefore of genocidal intent."

The crucial role played by intentionality in the Genocide Convention means that under its terms the huge number of Indian deaths from epidemics cannot be considered genocide.

y contrast, some of the massacres in California, where both the perpetrators and their supporters openly acknowledged a desire to destroy the Indians as an ethnic entity, might indeed be regarded under the terms of the convention as exhibiting genocidal intent.

the convention does not address the question of what percentage of a group must be affected in order to qualify as genocide. As a benchmark, the prosecutor of the International Criminal Tribunal for the Former Yugoslavia has suggested"a reasonably significant number, relative to the total of the group as a whole," adding that the actual or attempted destruction should also relate to"the factual opportunity of the accused to destroy a group in a specific geographic area within the sphere of his control, and not in relation to the entire population of the group in a wider geographic sense."

If this principle were adopted, an atrocity like the Sand Creek massacre, limited to one group in a specific single locality, might also be considered an act of genocide.

Applying today’s standards to events of the past raises still other questions, legal and moral alike. While history has no statute of limitations, our legal system rejects the idea of retroactivity (ex post facto laws).

No doubt, the 19th-century idea of America’s"manifest destiny" was in part a rationalization for acquisitiveness, but the resulting dispossession of the Indians was as unstoppable as other great population movements of the past. The U.S. government could not have prevented the westward movement even if it had wanted to.

Morally, even if we accept the idea of universal principles transcending particular cultures and periods, we must exercise caution in condemning, say, the conduct of war during America’s colonial period, which for the most part conformed to thenprevailing notions of right and wrong.

The real task, then, is to ascertain the context of a specific situation and the options it presented. Given circumstances, and the moral standards of the day, did the people on whose conduct we are sitting in judgment have a choice to act differently?

Finally, even if some episodes can be considered genocidal—that is, tending toward genocide—they certainly do not justify condemning an entire society

Guilt is personal, and for good reason the Genocide Convention provides that only"persons" can be charged with the crime, probably even ruling out legal proceedings against governments.

noncombatants incidentally and accidentally, not purposefully." As for the larger society, even if some elements in the white population, mainly in the West, at times advocated extermination, no official of the U.S. government ever seriously proposed it. Genocide was never American policy, nor was it the result of policy.

The violent collision between whites and America's native population was probably unavoidable.

Genocide? These actions were almost certainly in conformity with the laws of war accepted at the time. The principles of limited war and of noncombatant immunity had been codified in Francis Lieber's General Order No. 100, issued for the Union Army on April 24, 1863. But the villages of warring Indians who refused to surrender were considered legitimate military objectives.

In the end, the sad fate of America's Indians represents not a crime but a tragedy, involving an irreconcilable collision of cultures and values.

efforts of well-meaning people in both camps, there existed no good solution to this clash. The Indians were not prepared to give up the nomadic life of the hunter for the sedentary life of the farmer. The new Americans, convinced of their cultural and racial superiority, were unwilling to grant the original inhabitants of the continent the vast preserve of land required by the Indians’ way of life.

To fling the charge of genocide at an entire society serves neither the interests of the Indians nor those of history.

Reading or rereading a collection of such books today is like watching an old movie that feels more anguishing and frustrating than you remember. The anguish comes from knowing how the tale will unfold; the frustration from realizing that this was hardly the only possible outcome.

This conclusion is laid bare in the sprawling literature to emerge from 9/11 over the past two decades

Whatever individual stories the 9/11 books tell, too many describe the repudiation of U.S. values, not by extremist outsiders but by our own hand.

In these works, indifference to the growing terrorist threat gives way to bloodlust and vengeance after the attacks. Official dissembling justifies wars, then prolongs them. In the name of counterterrorism, security is politicized, savagery legalized and patriotism weaponized.

that state of exception became our new American exceptionalism.

The latest works on the legacy of 9/11 show how war-on-terror tactics were turned on religious groups, immigrants and protesters in the United States. The war on terror came home, and it walked in like it owned the place.

It happened fast. By 2004, when the 9/11 Commission urged America to “engage the struggle of ideas,” it was already too late; the Justice Department’s initial torture memos were already signed, the Abu Ghraib images had already eviscerated U.S. claims to moral authority.

“It is for now far easier for a researcher to explain how and why September 11 happened than it is to explain the aftermath,” Steve Coll writes in “Ghost Wars,” his 2004 account of the CIA’s pre-9/11 involvement in Afghanistan. Throughout that aftermath, Washington fantasized about remaking the world in its image, only to reveal an ugly image of itself to the world.

“We anticipate a black future for America,” bin Laden told ABC News more than three years before the 9/11 attacks. “Instead of remaining United States, it shall end up separated states and shall have to carry the bodies of its sons back to America.”

bin Laden also came to grasp, perhaps self-servingly, the benefits of luring Washington into imperial overreach, of “bleeding America to the point of bankruptcy,” as he put it in 2004, through endless military expansionism, thus beating back its global sway and undermining its internal unity.

To an unnerving degree, the United States moved toward the enemy’s fantasies of what it might become — a nation divided in its sense of itself, exposed in its moral and political compromises, conflicted over wars it did not want but would not end.

“The most frightening aspect of this new threat . . . was the fact that almost no one took it seriously. It was too bizarre, too primitive and exotic.” That is how Lawrence Wright depicts the early impressions of bin Laden and his terrorist network among U.S. officials

The books traveling that road to 9/11 have an inexorable, almost suffocating feel to them, as though every turn invariably leads to the first crush of steel and glass.

With the system “blinking red,” as CIA Director George Tenet later told the 9/11 Commission, why were all these warnings not enough? Wright lingers on bureaucratic failings

Clarke’s conclusion is simple, and it highlights America’s we-know-better swagger, a national trait that often masquerades as courage or wisdom. “America, alas, seems only to respond well to disasters, to be undistracted by warnings,” he writes. “Our country seems unable to do all that must be done until there has been some awful calamity.”

The problem with responding only to calamity is that underestimation is usually replaced by overreaction. And we tell ourselves it is the right thing, maybe the only thing, to do.

A last-minute flight change. A new job at the Pentagon. A retirement from the fire station. The final tilt of a plane’s wings before impact. If the books about the lead-up to 9/11 are packed with unbearable inevitability, the volumes on the day itself highlight how randomness separated survival from death.

Had the World Trade Center, built in the late 1960s and early 1970s, been erected according to the city building code in effect since 1938, Dwyer and Flynn explain, “it is likely that a very different world trade center would have been built.

Instead, it was constructed according to a new code that the real estate industry had avidly promoted, a code that made it cheaper and more lucrative to build and own skyscrapers. “It increased the floor space available for rent . . . by cutting back on the areas that had been devoted, under the earlier law, to evacuation and exit,” the authors write. The result: Getting everybody out on 9/11 was virtually impossible.

The towers embodied the power of American capitalism, but their design embodied the folly of American greed. On that day, both conditions proved fatal.

Garrett Graff quotes Defense Department officials marveling at how American Airlines Flight 77 struck a part of the Pentagon that, because of new anti-terrorism standards, had recently been reinforced and renovated

“In any other wedge of the Pentagon, there would have been 5,000 people, and the plane would have flown right through the middle of the building.” Instead, fewer than 200 people were killed in the attack on the Pentagon, including the passengers on the hijacked jet. Chance and preparedness came together.

The bravery of police and firefighters is the subject of countless 9/11 retrospectives, but these books also emphasize the selflessness of civilians who morphed into first responders

The passengers had made phone calls when the hijacking began and had learned the fate of other aircraft that day. “According to one call, they voted on whether to rush the terrorists in an attempt to retake the plane,” the commission report states. “They decided, and acted.”

The civilians aboard United Airlines Flight 93, whose resistance forced the plane to crash into a Pennsylvania field rather than the U.S. Capitol, were later lionized as emblems of swashbuckling Americana

Such episodes, led by ordinary civilians, embodied values that the 9/11 Commission called on the nation to display. Except those values would soon be dismantled, in the name of security, by those entrusted to uphold them.

Lawyering to death.The phrase appears in multiple 9/11 volumes, usually uttered by top officials adamant that they were going to get things done, laws and rules be damned

“I had to show the American people the resolve of a commander in chief that was going to do whatever it took to win,” Bush explains. “No yielding. No equivocation. No, you know, lawyering this thing to death.” In “Against All Enemies,” Clarke recalls the evening of Sept. 11, 2001, when Bush snapped at an official who suggested that international law looked askance at military force as a tool of revenge. “I don’t care what the international lawyers say, we are going to kick some ass,” the president retorted.

The message was unmistakable: The law is an obstacle to effective counterterrorism

Except, they did lawyer this thing to death. Instead of disregarding the law, the Bush administration enlisted it. “Beginning almost immediately after September 11, 2001, [Vice President Dick] Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror,

Through public declarations and secret memos, the administration sought to remove limits on the president’s conduct of warfare and to deny terrorism suspects the protections of the Geneva Conventions by redefining them as unlawful enemy combatants. Nothing, Mayer argues of the latter effort, “more directly cleared the way for torture than this.”

Tactics such as cramped confinement, sleep deprivation and waterboarding were rebranded as “enhanced interrogation techniques,” legally and linguistically contorted to avoid the label of torture. Though the techniques could be cruel and inhuman, the OLC acknowledged in an August 2002 memo, they would constitute torture only if they produced pain equivalent to organ failure or death, and if the individual inflicting such pain really really meant to do so: “Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” It’s quite the sleight of hand, with torture moving from the body of the interrogated to the mind of the interrogator.

the memo concludes that none of it actually matters. Even if a particular interrogation method would cross some legal line, the relevant statute would be considered unconstitutional because it “impermissibly encroached” on the commander in chief’s authority to conduct warfare

You have informed us. Experts you have consulted. Based on your research. You do not anticipate. Such hand-washing words appear throughout the memos. The Justice Department relies on information provided by the CIA to reach its conclusions; the CIA then has the cover of the Justice Department to proceed with its interrogations. It’s a perfect circle of trust.

In these documents, lawyers enable lawlessness. Another May 2005 memo concludes that, because the Convention Against Torture applies only to actions occurring under U.S. jurisdiction, the CIA’s creation of detention sites in other countries renders the convention “inapplicable.”

avid Cole describes the documents as “bad-faith lawyering,” which might be generous. It is another kind of lawyering to death, one in which the rule of law that the 9/11 Commission urged us to abide by becomes the victim.

Similarly, because the Eighth Amendment’s prohibition on cruel and unusual punishment is meant to protect people convicted of crimes, it should not apply to terrorism detainees — because they have not been officially convicted of anything. The lack of due process conveniently eliminates constitutional protections

Years later, the Senate Intelligence Committee would investigate the CIA’s post-9/11 interrogation program. Its massive report — the executive summary of which appeared as a 549-page book in 2014 — found that torture did not produce useful intelligence, that the interrogations were more brutal than the CIA let on, that the Justice Department did not independently verify the CIA’s information, and that the spy agency impeded oversight by Congress and the CIA inspector general.

“The CIA’s effectiveness representations were almost entirely inaccurate,” the Senate report concluded. It is one of the few lies of the war on terror unmasked by an official government investigation and public report, but just one of the many documented in the 9/11 literature.

Officials in the war on terror didn’t deceive or dissemble just with lawmakers or the public. In the recurring tragedy of war, they lied just as often to themselves.

“The decision to invade Iraq was one made, finally and exclusively, by the president of the United States, George W. Bush,” he writes.

n Woodward’s “Bush at War,” the president admitted that before 9/11, “I didn’t feel that sense of urgency [about al-Qaeda], and my blood was not nearly as boiling.”

A president initially concerned about defending and preserving the nation’s moral goodness against terrorism found himself driven by darker impulses. “I’m having difficulty controlling my bloodlust,” Bush confessed to religious leaders in the Oval Office on Sept. 20, 2001,

Bloodlust, moral certainty and sudden vulnerability make a dangerous combination. The belief that you are defending good against evil can lead to the belief that whatever you do to that end is good, too.

Draper distills Bush’s worldview: “The terrorists’ primary objective was to destroy America’s freedom. Saddam hated America. Therefore, he hated freedom. Therefore, Saddam was himself a terrorist, bent on destroying America and its freedom.”

The president assumed the worst about what Hussein had done or might do, yet embraced best-case scenarios of how an American invasion would proceed.

“Iraqis would rejoice at the sight of their Western liberators,” Draper recaps. “Their newly shared sense of national purpose would overcome any sectarian allegiances. Their native cleverness would make up for their inexperience with self-government. They would welcome the stewardship of Iraqi expatriates who had not set foot in Baghdad in decades. And their oil would pay for everything.”

It did not seem to occur to Bush and his advisers that Iraqis could simultaneously hate Hussein and resent the Americans — feelings that could have been discovered by speaking to Iraqis and hearing their concerns.

few books on the war that gets deep inside Iraqis’ aversion to the Americans in their midst. “What gives them the right to change something that’s not theirs in the first place?” a woman in a middle-class Baghdad neighborhood asks him. “I don’t like your house, so I’m going to bomb it and you can rebuild it again the way I want it, with your money?

The occupation did not dissuade such impressions when it turned the former dictator’s seat of government into its own luxurious Green Zone, or when it retrofitted the Abu Ghraib prison (“the worst of Saddam’s hellholes,” Shadid calls it) into its own chamber of horrors.

Shadid hears early talk of the Americans as “kuffar” (heathens), a 51-year-old former teacher complains that “we’ve exchanged a tyrant for an occupier.”

Shadid understood that governmental legitimacy — who gets to rule, and by what right — was a matter of overriding importance for Iraqis. “The Americans never understood the question,” he writes; “Iraqis never agreed on the answer.

When the United States so quickly shifted from liberation to occupation, it lost whatever legitimacy it enjoyed. “Bush handed that enemy precisely what it wanted and needed, proof that America was at war with Islam, that we were the new Crusaders come to occupy Muslim land,” Clarke writes. “It was as if Usama bin Laden, hidden in some high mountain redoubt, were engaging in long-range mind control of George Bush, chanting ‘invade Iraq, you must invade Iraq.’ ”

The foolishness and arrogance of the American occupation didn’t help. In “Imperial Life in the Emerald City: Inside Iraq’s Green Zone,” Rajiv Chandrasekaran explains how, even as daily security was Iraqis’ overwhelming concern, viceroy L. Paul Bremer, Bush’s man in Baghdad, was determined to turn the country into a model free-market economy, complete with new investment laws, bankruptcy courts and a state-of-the-art stock exchange.

a U.S. Army general, when asked by local journalists why American helicopters must fly so low at night, thus scaring Iraqi children, replied that the kids were simply hearing “the sound of freedom.”Message: Freedom sounds terrifying.

For some Americans, inflicting that terror became part of the job, one more tool in the arsenal. In “The Forever War” by Dexter Filkins, a U.S. Army lieutenant colonel in Iraq assures the author that “with a heavy dose of fear and violence, and a lot of money for projects, I think we can convince these people that we are here to help them.”

Chandrasekaran recalls the response of a top communications official under Bremer, when reporters asked about waves of violence hitting Baghdad in the spring of 2004. “Off the record: Paris is burning,” the official told the journalists. “On the record: Security and stability are returning to Iraq.”

the Iraq War, conjured in part on the false connections between Iraq and al-Qaeda, ended up helping the terrorist network: It pulled resources from the war in Afghanistan, gave space for bin Laden’s men to regroup and spurred a new generation of terrorists in the Middle East. “A bigger gift to bin Laden was hard to imagine,” Bergen writes.

“U.S. officials had no need to lie or spin to justify the war,” Washington Post reporter Craig Whitlock writes in “The Afghanistan Papers,” a damning contrast of the war’s reality vs. its rhetoric. “Yet leaders at the White House, the Pentagon and the State Department soon began to make false assurances and to paper over setbacks on the battlefield.” As the years passed, the deceit became entrenched, what Whitlock calls “an unspoken conspiracy” to hide the truth.

Afghanistan was where al-Qaeda, supported by the Taliban, had made its base — it was supposed to be the good war, the right war, the war of necessity and not choice, the war endorsed at home and abroad.

If Iraq was the war born of lies, Afghanistan was the one nurtured by them

Whitlock finds commanding generals privately admitting that they long fought the war “without a functional strategy.” That, two years into the conflict, Rumsfeld complained that he had “no visibility into who the bad guys are.”

That Army Lt. Gen. Douglas Lute, a former coordinator of Iraq and Afghanistan policy, acknowledged that “we didn’t have the foggiest idea of what we were undertaking.”

That U.S. officials long wanted to withdraw American forces but feared — correctly so, it turns out — that the Afghan government might collapse. “Bin Laden had hoped for this exact scenario,” Whitlock observes. “To lure the U.S. superpower into an unwinnable guerrilla conflict that would deplete its national treasury and diminish its global influence.”

All along, top officials publicly contradicted these internal views, issuing favorable accounts of steady progress

Bad news was twisted into good: Rising suicide attacks in Kabul meant the Taliban was too weak for direct combat, for instance, while increased U.S. casualties meant America was taking the fight to the enemy.

deceptions transpired across U.S. presidents, but the Obama administration, eager to show that its first-term troop surge was working, “took it to a new level, hyping figures that were misleading, spurious or downright false,” Whitlock writes. And then under President Donald Trump, he adds, the generals felt pressure to “speak more forcefully and boast that his war strategy was destined to succeed.”

in public, almost no senior government officials had the courage to admit that the United States was slowly losing,” Whitlock writes. “With their complicit silence, military and political leaders avoided accountability and dodged reappraisals that could have changed the outcome or shortened the conflict.”

Deputy Secretary of State Richard Armitage traveled to Moscow shortly after 9/11 to give officials a heads up about the coming hostilities in Afghanistan. The Russians, recent visitors to the graveyard of empires, cautioned that Afghanistan was an “ambush heaven” and that, in the words of one of them, “you’re really going to get the hell kicked out of you.”

a war should not be measured only by the timing and the competence of its end. We still face an equally consequential appraisal: How good was this good war if it could be sustained only by lies?

In the two decades since the 9/11 attacks, the United States has often attempted to reconsider its response

They are written as though intending to solve problems. But they can be read as proof that the problems have no realistic solution, or that the only solution is to never have created them.

the report sets the bar for staying so high that an exit strategy appears to be its primary purpose.

he counterinsurgency manual is an extraordinary document. Implicitly repudiating notions such as “shock and awe” and “overwhelming force,” it argues that the key to battling an insurgency in countries such as Iraq and Afghanistan is to provide security for the local population and to win its support through effective governance

It also attempts to grasp the nature of America’s foes. “Most enemies either do not try to defeat the United States with conventional operations or do not limit themselves to purely military means,” the manual states. “They know that they cannot compete with U.S. forces on those terms. Instead, they try to exhaust U.S. national will.” Exhausting America’s will is an objective that al-Qaeda understood well.

“Counterinsurgents should prepare for a long-term commitment,” the manual states. Yet, just a few pages later, it admits that “eventually all foreign armies are seen as interlopers or occupiers.” How to accomplish the former without descending into the latter? No wonder so many of the historical examples of counterinsurgency that the manual highlights, including accounts from the Vietnam War, are stories of failure.

“Soldiers and Marines are expected to be nation builders as well as warriors,” the manual proclaims, but the arduous tasks involved — reestablishing government institutions, rebuilding infrastructure, strengthening local security forces, enforcing the rule of law — reveal the tension at the heart of the new doctrine

In his foreword, Army Lt. Col. John Nagl writes that the document’s most lasting impact may be as a catalyst not for remaking Iraq or Afghanistan, but for transforming the Army and Marine Corps into “more effective learning organizations,” better able to adapt to changing warfare. And in her introduction, Sarah Sewall, then director of Harvard’s Carr Center for Human Rights Policy, concludes that its “ultimate value” may be in warning civilian officials to think hard before engaging in a counterinsurgency campaign.

“The thing that got to everyone,” Finkel explains in the latter book, “was not having a defined front line. It was a war in 360 degrees, no front to advance toward, no enemy in uniform, no predictable patterns, no relief.” It’s a powerful summation of battling an insurgency.

Hitting the wrong house is what counterinsurgency doctrine is supposed to avoid. Even successfully capturing or killing a high-value target can be counterproductive if in the process you terrorize a community and create more enemies. In Iraq, the whole country was the wrong house. America’s leaders knew it was the wrong house. They hit it anyway.

Another returning soldier, Nic DeNinno, struggles to tell his wife about the time he and his fellow soldiers burst into an Iraqi home in search of a high-value target. He threw a man down the stairs and held another by the throat. After they left, the lieutenant told him it was the wrong house. “The wrong f---ing house,” Nic says to his wife. “One of the things I want to remember is how many times we hit the wrong house.”

“As time passes, more documents become available, and the bare facts of what happened become still clearer,” the report states. “Yet the picture of how those things happened becomes harder to reimagine, as that past world, with its preoccupations and uncertainty, recedes.” Before making definitive judgments, then, they ask themselves “whether the insights that seem apparent now would really have been meaningful at the time.”

Two of the latest additions to the canon, “Reign of Terror” by Spencer Ackerman and “Subtle Tools” by Karen Greenberg, draw straight, stark lines between the earliest days of the war on terror and its mutations in our current time, between conflicts abroad and divisions at home. These works show how 9/11 remains with us, and how we are still living in the ruins.

When Trump declared that “we don’t have victories anymore” in his 2015 speech announcing his presidential candidacy, he was both belittling the legacy of 9/11 and harnessing it to his ends. “His great insight was that the jingoistic politics of the War on Terror did not have to be tied to the War on Terror itself,” Ackerman writes. “That enabled him to tell a tale of lost greatness.” And if greatness is lost, someone must have taken it.

“Trump had learned the foremost lesson of 9/11,” Ackerman writes, “that the terrorists were whomever you said they were.”

The backlash against Muslims, against immigrants crossing the southern border and against protesters rallying for racial justice was strengthened by the open-ended nature of the global war on terror.

the war is not just far away in Iraq or Afghanistan, in Yemen or Syria, but it’s happening here, with mass surveillance, militarized law enforcement and the rebranding of immigration as a threat to the nation’s security rather than a cornerstone of its identity

the Authorization for Use of Military Force, drafted by administration lawyers and approved by Congress just days after the attacks, as the moment when America’s response began to go awry. The brief joint resolution allowed the president to use “all necessary and appropriate force” against any nation, organization or person who committed the attacks, and to prevent any future ones.

It was the “Ur document in the war on terror and its legacy,” Greenberg writes. “Riddled with imprecision, its terminology was geared to codify expansive powers.” Where the battlefield, the enemy and the definition of victory all remain vague, war becomes endlessly expansive, “with neither temporal nor geographical boundaries.”

This was the moment the war on terror was “conceptually doomed,” Ackerman concludes. This is how you get a forever war.

There were moments when an off-ramp was visible. The killing of bin Laden in 2011 was one such instance, Ackerman argues, but “Obama squandered the best chance anyone could ever have to end the 9/11 era.”

The author assails Obama for making the war on terror more “sustainable” through a veneer of legality — banning torture yet failing to close the detention camp at Guantánamo Bay and relying on drone strikes that “perversely incentivized the military and the CIA to kill instead of capture.”

There would always be more targets, more battlefields, regardless of president or party. Failures became the reason to double down, never wind down.

The longer the war went on, the more that what Ackerman calls its “grotesque subtext” of nativism and racism would move to the foreground of American politics

Absent the war on terror, it is harder to imagine a presidential candidate decrying a sitting commander in chief as foreign, Muslim, illegitimate — and using that lie as a successful political platform.

Absent the war on terror, it is harder to imagine a travel ban against people from Muslim-majority countries. Absent the war on terror, it is harder to imagine American protesters labeled terrorists, or a secretary of defense describing the nation’s urban streets as a “battle space” to be dominated

In his latest book on bin Laden, Bergen argues that 9/11 was a major tactical success but a long-term strategic failure for the terrorist leader. Yes, he struck a vicious blow against “the head of the snake,” as he called the United States, but “rather than ending American influence in the Muslim world, the 9/11 attacks greatly amplified it,” with two lengthy, large-scale invasions and new bases established throughout the region.

“A vastly different America has taken root” in the two decades since 9/11, Greenberg writes. “In the name of retaliation, ‘justice,’ and prevention, fundamental values have been cast aside.”

the legacy of the 9/11 era is found not just in Afghanistan or Iraq, but also in an America that drew out and heightened some of its ugliest impulses — a nation that is deeply divided (like those “separated states” bin Laden imagined); that bypasses inconvenient facts and embraces conspiracy theories; that demonizes outsiders; and that, after failing to spread freedom and democracy around the world, seems less inclined to uphold them here

Seventeen years after the 9/11 Commission called on the United States to offer moral leadership to the world and to be generous and caring to our neighbors, our moral leadership is in question, and we can barely be generous and caring to ourselves.

Still reeling from an attack that dropped out of a blue sky, America is suffering from a sort of post-traumatic stress democracy. It remains in recovery, still a good country, even if a broken good country.

9/11 was a test. Thebooks of the lasttwo decades showhow America failed.

Deep within the catalogue of regrets that is the 9/11 Commission report

“My experience in those four months was the worst experience I’ve ever had in working in a company,” Alex Kairu, one of the Kenya workers, said in an interview.

OpenAI marshaled a sprawling global pipeline of specialized human labor for over two years to enable its most cutting-edge AI technologies to exist, the documents show

“It’s something that needs to get done,” Sears said. “It’s just so unbelievably ugly.”

eviewing toxic content goes hand-in-hand with the less objectionable work to make systems like ChatGPT usable.

The work done for OpenAI is even more vital to the product because it is seeking to prevent the company’s own software from pumping out unacceptable content, AI experts say.

Sears said CloudFactory determined there was no way to do the work without harming its workers and decided not to accept such projects.

companies could soon spend hundreds of millions of dollars a year to provide AI systems with human feedback. Others estimate that companies are already investing between millions and tens of millions of dollars on it annually. OpenAI said it hired more than 1,000 workers for this purpose.

Another layer of human input asks workers to rate different answers from a chatbot to the same question for which is least problematic or most factually accurate. In response to a question asking how to build a homemade bomb, for example, OpenAI instructs workers to upvote the answer that declines to respond, according to OpenAI research. The chatbot learns to internalize the behavior through multiple rounds of feedback. 

A spokeswoman for Sama, the San Francisco-based outsourcing company that hired the Kenyan workers, said the work with OpenAI began in November 2021. She said the firm terminated the contract in March 2022 when Sama’s leadership became aware of concerns surrounding the nature of the project and has since exited content moderation completely.

OpenAI also hires outside experts to provoke its model to produce harmful content, a practice called “red-teaming” that helps the company find other gaps in its system.

At first, the texts were no more than two sentences. Over time, they grew to as much as five or six paragraphs. A few weeks in, Mathenge and Bill Mulinya, another team leader, began to notice the strain on their teams. Workers began taking sick and family leaves with increasing frequency, they said.

The tasks that the Kenya-based workers performed to produce the final safety check on ChatGPT’s outputs were yet a fourth layer of human input. It was often psychologically taxing. Several of the Kenya workers said they have grappled with mental illness and that their relationships and families have suffered. Some struggle to continue to work.

On July 11, some of the OpenAI workers lodged a petition with the Kenyan parliament urging new legislation to protect AI workers and content moderators. They also called for Kenya’s existing laws to be amended to recognize that being exposed to harmful content is an occupational hazard

Mercy Mutemi, a lawyer and managing partner at Nzili & Sumbi Advocates who is representing the workers, said despite their critical contributions, OpenAI and Sama exploited their poverty as well as the gaps in Kenya’s legal framework. The workers on the project were paid on average between $1.46 and $3.74 an hour, according to a Sama spokeswoman.

The Sama spokeswoman said the workers engaged in the OpenAI project volunteered to take on the work and were paid according to an internationally recognized methodology for determining a living wage. The contract stated that the fee was meant to cover others not directly involved in the work, including project managers and psychological counselors.

Kenya has become a hub for many tech companies seeking content moderation and AI workers because of its high levels of education and English literacy and the low wages associated with deep poverty.

Some Kenya-based workers are suing Meta’s Facebook after nearly 200 workers say they were traumatized by work requiring them to review videos and images of rapes, beheadings and suicides.

A Kenyan court ruled in June that Meta was legally responsible for the treatment of its contract workers, setting the stage for a shift in the ground rules that tech companies including AI firms will need to abide by to outsource projects to workers in the future.

OpenAI signed a one-year contract with Sama to start work in November 2021. At the time, mid-pandemic, many workers viewed having any work as a miracle, said Richard Mathenge, a team leader on the OpenAI project for Sama and a cosigner of the petition.

OpenAI researchers would review the text passages and send them to Sama in batches for the workers to label one by one. That text came from a mix of sources, according to an OpenAI research paper: public data sets of toxic content compiled and shared by academics, posts scraped from social media and internet forums such as Reddit and content generated by prompting an AI model to produce harmful outputs. 

The generated outputs were necessary, the paper said, to have enough examples of the kind of graphic violence that its AI systems needed to avoid. In one case, OpenAI researchers asked the model to produce an online forum post of a teenage girl whose friend had enacted self-harm, the paper said.

OpenAI asked the workers to parse text-based sexual content into four categories of severity, documents show. The worst was descriptions of child sexual-abuse material, or C4. The C3 category included incest, bestiality, rape, sexual trafficking and sexual slavery—sexual content that could be illegal if performed in real life.

Jason Kwon, general counsel at OpenAI, said in an interview that such work was really valuable and important for making the company’s systems safe for everyone that uses them. It allows the systems to actually exist in the world, he said, and provides benefits to users.

Working on the violent-content team, Kairu said, he read hundreds of posts a day, sometimes describing heinous acts, such as people stabbing themselves with a fork or using unspeakable methods to kill themselves

He began to have nightmares. Once affable and social, he grew socially isolated, he said. To this day he distrusts strangers. When he sees a fork, he sees a weapon.

Mophat Okinyi, a quality analyst, said his work included having to read detailed paragraphs about parents raping their children and children having sex with animals. He worked on a team that reviewed sexual content, which was contracted to handle 15,000 posts a month, according to the documents. His six months on the project tore apart his family, he said, and left him with trauma, anxiety and depression.

In March 2022, management told staffers the project would end earlier than planned. The Sama spokeswoman said the change was due to a dispute with OpenAI over one part of the project that involved handling images. The company canceled all contracts with OpenAI and didn’t earn the full $230,000 that had been estimated for the four projects, she said.

Several months after the project ended, Okinyi came home one night with fish for dinner for his wife, who was pregnant, and stepdaughter. He discovered them gone and a message from his wife that she’d left, he said.“She said, ‘You’ve changed. You’re not the man I married. I don’t understand you anymore,’” he said.

If anything, analysts point out, Amazon offers at least one major advantage over many other companies, which is that its founder and chief executive, Jeff Bezos, has created a culture in which employees typically know exactly where they stand. “It’s a super attention-rich environment,” said Marcus Buckingham, an author and founder of the firm TMBC, which advises large companies on employee evaluation and performance. “There’s a lot of critical attention. They’re almost never ignored.”

The legal profession, one of the most brutal when it comes to pace and time commitment, illuminates the economic logic of a system where a large initial cohort of workers is gradually culled until only a small fraction are left.

The so-called Cravath system, named after the prestigious New York law firm known today as Cravath, Swaine & Moore, began to be put in place in the early 20th century. The firm and its imitators hired a large class of entry-level associates from the top law schools in the country, then relentlessly sifted them out over a period of several years, at the end of which only the most brilliant and productive — historically about one in 10 or 15 — became partners.

Those who did not make partner got first-rate legal training along the way, though, and were almost always able to land respectable jobs at lesser firms or as in-house corporate lawyers. For Cravath, it was also a plus: The partners made good money billing out its associates at top-of-market rates.

The thinning process even has its own name among scholars of law firms: the tournament.

Variations on the tournament are also the norm at elite management consulting firms and investment banks.

in many cases, many of the overachievers who are candidates for upper management at companies like Amazon welcome the breakneck pace and unyielding expectations. They just want to know that the system will be meritocratic. “We don’t mind competition,” he said. “We mind unfair competition.”

But there are some signs of change, as more and more young highly credentialed workers acknowledge that they can’t fulfill their responsibilities as husbands, wives, parents and friends while ascending through their organizations.

As in previous decades, the legal profession may hint at what’s to come. Alternative work arrangements are proliferating, and many previously elite firms are finding they no longer have the profits or the partnership slots to make the Cravath system work, abandoning the field of play to only a tiny number of ultrasuccessful firms.

“Amazon is at the top of the food chain,” Professor Henderson said. “Maybe they can get away with it. But most firms can’t rank and yank.”

The principle of the equality of taxation was maintained, all citizens were liable. This reflected a confirmation of the abolition of feudalism and an expressed belief in “career open to talent”. There was to be both formal legal equality and equality of opportunities, holding office would depend on ability, loyalty and experience, not accident of birth.

Analysis of the massive votes in favour had undermined their credibility. The organiser of the 1800 plebiscite, Napoleon’s brother, perhaps worried at the Jacobin sympathies of many soldiers, simply added 500,000 votes to the “yes” column for the army. What is more, the system of voting was open rather than by secret ballot and the question in the plebiscite only sought approval for a decision that had already been taken.

In the government Napoleon agreed with Sieyes concept, there should be authority from above and trust from below, of the general nature of the Constitution but instead of 3 Consuls as Sieyes thought Napoleon wanted political authority in his own hand. At the end he accepted maintaining the government with 3 consuls but he named himself the First Consul and ordered that the other two would have no independent executive authority. This showed how Napoleon wanted power. He reinforced his power when in the 2 Constitution he was made the First Consul for life and in the 3 Constitution named himself Emperor. Moreover, Napoleon established effective control over the legislative process. He established a similar control over the executive. Under the Constitution he could appoint the second and third consuls, government ministers, the prefects of the departments of France and the mayor of larger communes. The first three were appointed from the national list and the last from the communal lists. At the centre there was no cabinet system, individual ministers reported directly to Napoleon. All effective decision making was concentrated in his hands, no minister or prefect, for instance, could take action unless sure that it was authorised by Napoleon. This was top-down government, centralised and authoritarian. Even at the local level, holders of government posts were appointed from above, not elected from below. Napoleon’s control of the government system was more absolute than that of the monarchy that ruled in France before 1789.

In terms of liberty, it could be argued that Napoleon fundamentally violated revolutionary principles. Whilst he allowed religious freedom by tolerating all religions, as is expressed in the Organic Articles, the hierarchies of the various churches were under his control. What is more, there was no freedom of speech. Censorship was a key element of Napoleonic rule of France, and those suspected of sedition could be tried and punished outside the normal framework of the law. Nor was there freedom of movement for workers compelled to carry their livret. It also affected Napoleon’s view about the subordinate position of women and children. Whilst a man could imprison an adulterous wife or disobedient child, a married woman had few property rights and could only sue for divorce if a husband insisted on his mistress sharing the family home.

Secondary education was largely restricted to the middle classes and sons of officers in the army. In the 37 schools that were found in France the curriculum was closed supervised. Free thinking was discouraged. Schools taught a utilitarian curriculum based around France, mathematics, history, geography and science and inculcated both military values and loyalty to the regime. Alongside this state system, independent and Catholic schools continued to flourish, despite high fees. In order to bring such schools under closer government supervision, in 1806 Napoleon set up the Imperial University, which was in some respects a kind of nineteenth-century Ofsted, to oversee the curriculum and inspect schools.

There were 606 firearm-related accidents in the same year -- about 5% of the number of intentional gun deaths.

There are about 310 million guns in the country. About 40% of households have them, a fraction that has been slowly declining over the last few decades, down from about 50% in the 1960s.

gun ownership has gotten much more concentrated among fewer households: if you own one gun, you probably own several

The most comprehensive public list of U.S. mass shootings is the spreadsheet of 62 incidents from 1982-2012, compiled by Mother Jones. Their list shows:

Mass shootings happen all over the country. Killers used a semi-automatic handgun in 75% of incidents, which is about the same percentage as the 72% in overall gun violence. Killers used an assault weapon in 40% of incidents. This is much higher than overall assault weapon use in crimes, estimated at less than 2%. The guns were obtained legally in 79% of mass shootings. Many of the shooters showed signs of mental illness, but in only two cases was there a prior diagnosis. There were no cases where an armed civilian fired back.

they account for only a small fraction of gun violence in the United States.

It's also possible that gun ownership is a deterrent to crime, because criminals must consider the possibility that their intended victim is armed.

. In 2010, different researchers re-examined Lott's work, the NRC report, and additional data up through 2006, and reaffirmed that there is no evidence that right-to-carry laws reduce crime.

The most comprehensive estimate is that a 10% reduction in U.S. households with guns would result in a 3% reduction in homicides.

current federal gun regulation (see above) contains an enormous loophole: While businesses that deal in guns are required to keep records and run background checks, guns can be transferred between private citizens without any record. This makes straw purchases easy.

There's abundant evidence that under the current system, guns flow easily between legal and illegal markets.

guns are used to commit a crime about 10 times as often as they are used for self-defense.

Won't criminals kill with other weapons if they don't have guns? The crux of this question is whether most homicides are planned, or whether killers more often confront their victims with no clear intention. In the second case, adding a gun could result in a fatal shooting that would otherwise have been avoided.

In 1968, Franklin Zimring examined cases of knife assaults versus gun assaults in Chicago. The gun attacks were five times more deadly

Here are some approaches that don't seem to work, at least not by themselves, or in the ways they've been tried so far: Stiffer prison sentences for gun crimes. Gun buy-backs: In a country with one gun per person, getting a few thousand guns off the street in each city may not mean very much. Safe storage laws and public safety campaigns.

We don't really have good enough evidence to evaluate these strategies: Background checks, such as the Brady Act requires. Bans on specific weapons types, such as the expired 1994 assault weapons ban or the handgun bans in various cities.

These policies do actually seem to reduce gun violence, at least somewhat or in some cases: More intensive probation strategies: increased contact with police, probation officers and social workers. Changes in policing strategies, such increased patrols in hot spots. Programs featuring cooperation between law enforcement, community leaders, and researchers, such as Project Safe Neighborhoods.

Removing legal restrictions that prevent the Centers for Disease Control and other agencies from tracking and researching gun violence is also a sensible idea, and follows a long history of calls from scientists (see: what don't we know).

We lack some of the most basic information we need to have a sensible gun policy debate, partially because researchers have been prevented by law from collecting it. The 2004 National Research Council report discussed above identified several key types of missing data: systematic reporting of individual gun incidents and injuries, gun ownership at the local level, and detailed information on the operation of firearms markets. We don't even have reliable data on the number of homicides in each county.

Centers for Disease Control, the main U.S. agency that tracks and studies American injuries and death, has been effectively prevented from studying gun violence, due to a law passed by Congress in 1996.

anonymized hospital reporting systems are the main ways we know about many other types of injuries, but the Affordable Care Act prevents doctors from gathering information about their patients' gun use. A 2011 law restricts gun violence research at the National Institutes of Health. The legal language prevents these agencies from using any money "to advocate or promote gun control."

I asked him about his critics, and he said they fell into two camps.

The immediate reason for his retirement was less abstract, he said. He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.

“A lot of the people who say that are sincere,” he said. “That’s their conception of law. That’s fine.”

He said he had less sympathy for the second camp. “There are others who are just, you know, reactionary beasts,” he said. “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.”

Some, he said, simply have a different view of the proper role of the judge. “There is a very strong formalist tradition in the law,” he said, summarizing it as: “Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.”

low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.”

Judge Posner said he hoped to work with groups concerned with prisoners’ rights, with a law school clinic and with law firms, to bring attention and aid to people too poor to afford lawyers.

In one of his final opinions, Judge Posner, writing for a three-judge panel, reinstated a lawsuit from a prisoner, Michael Davis, that had been dismissed on technical grounds.

“The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said.

If the House and Senate arrive at different decisions, the law governing the proceedings is unclear about how to reconcile them, with the potential for an unresolvable constitutional deadlock.

The 2000 election was arguably the closest in history, decided by Florida by a margin of one one-hundredth of one percent, so close that we will never know who the true winner of the state was: Media recounts months later concluded that the results would change depending on which counting method was used. Even so, a concession occurred before the second stage.

If a state’s electoral votes are disputed, the House and Senate meet separately to adjudicate the controversy. A potentially small number of representatives or senators can break rank, conceding the election by agreeing to resolve the dispute in favor of the other party. There is a potentially dangerous legal ambiguity here:

The House and Senate could vote on the commission’s recommendation — but if the two houses disagreed, the commission’s decision would stand. The commission first recommended, on an 8-to-7 partisan vote, that Florida’s disputed electoral votes be allocated to the Republican candidate, Rutherford B. Hayes. But while the Republican Senate endorsed the recommendation, the Democratic House rejected it. The pivotal moment came immediately afterward: With the speaker of the House at his side, the vice-president announced that the commission’s decision stood. The Democrats accepted the call; they allowed the count to continue.

Peaceful transitions of power require political will. In the end, people on one side must step back from the brink.

Not because it was going to help Trump win but because it was going to help Trump cope with a loss. The president was not accepting defeat. That meant no Republican with career ambitions could accept it, either.

At a low point in his party’s existence, with much of the GOP’s leadership class pre-writing their own political epitaphs by empowering Trump to lay waste to the country’s foundational democratic norms, an obscure lawyer from west Michigan stood on principle. It proved to be the nail in Trump’s coffin

Shortly after Michigan’s vote to certify, the General Services Administration finally commenced the official transition of power and Trump tweeted out a statement affirming the move “in the best interest of our Country.”

Still, the drama in Lansing raised deeper questions about the health of our political system and the sturdiness of American democracy

Why were Republicans who privately admitted Trump’s legitimate defeat publicly alleging massive fraud? Why did it fall to a little-known figure like Van Langevelde to buffer the country from an unprecedented layer of turmoil?

In conversations with more than two dozen Michigan insiders—elected officials, party elders, consultants, activists—it became apparent how the state’s conditions were ripe for this sort of slow-motion disaster

Michigan is home to Detroit, an overwhelmingly majority Black city, that has always been a favorite punching bag of white Republicans. The state had viral episodes of conflict and human error that were easily manipulated and deliberately misconstrued. It drew special attention from the highest levels of the party, and for the president, it had the potential to settle an important score with his adversary, Democratic Governor Gretchen Whitmer

Perhaps most important, Trump’s allies in Michigan proved to be more career-obsessed, and therefore more servile to his whims, than GOP officials in any other state he has cultivated during his presidency, willing to indulge his conspiratorial fantasies in ways other Republicans weren’t.

“Anybody can sue anybody for any reason. But winning is a whole different matter. And Trump didn’t have a realistic pathway here,” Brian Calley, the former GOP lieutenant governor, told me prior to the certification vote

“We have to see this for what it is. It’s a PR strategy to erode public confidence in a very well-run election to achieve political ends,” Secretary of State Jocelyn Benson, a Democrat, said in an interview last week. “This was not any type of valid legal strategy that had any chance at ultimately succeeding.”

Strangely liberated by his deficit of 154,000 votes, the president’s efforts here were aimed not at overturning the results, but rather at testing voters’ faith in the ballot box and Republicans’ loyalty to him.

where he can ultimately succeed—is in convincing unprecedented numbers of Americans that their votes didn’t count. Last month, Gallup reported that the public’s confidence in our elections being accurate dropped 11 points since the 2018 midterms, which included a 34-point decrease among Republicans.

That was before a daily deluge of dishonest allegations and out-of-context insinuations; before the conservative media’s wall-to-wall coverage of exotic conspiracy theories; before the GOP’s most influential figures winked and nodded at the president of the United States alleging the greatest fraud in U.S. history.

Trump failed to win Michigan. But he succeeded in convincing America that a loss, no matter how conclusive, may never again be conclusive enough.

The irony of Michigan’s electoral meltdown is that Election Day, in the eyes of veteran clerks and poll workers across the state, was the smoothest it had ever been

“You’re talking about election officials implementing new laws, running an election with a 60 percent mail vote, in the middle of a pandemic,”

“In terms of voters getting the ballots processed and counted in a reasonable time period, I thought they did a marvelous job. But it was a huge challenge.”

There’s always this rallying cry from Republicans—‘We win everywhere else, but lose Wayne County’—that creates paranoia. I still remember hearing, back on my first campaign in 2002, that Wayne County always releases its votes last so that Detroit can see how many votes Democrats need to win the state. That’s what a lot of Republicans here believe.”

The Republicans—House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey—were not interested. Spooked by Trump’s continued assault on mail voting, and aware that their own members in the Legislature were distrustful of the new “no-excuse-absentee” rules, Chatfield and Shirkey weren’t inclined to do the process any favors.

many Republicans didn’t believe the election would be terribly close to begin with

The common expectation was that the president would lose comfortably, by at least 4 or 5 points, a margin that would render any controversy about absentee voting meaningless.

Michigan Republicans were gripped by equal parts euphoria and panic. It was clear Trump was running far more competitively than they’d anticipated; he was on track to win Florida, Ohio and North Carolina, three states that tally their ballots quickly, meaning the spotlight would abruptly shift to the critical, slow-counting battlegrounds of Michigan, Wisconsin and Pennsylvania.

it wasn’t until midnight that the urgency of the situation crashed over Republicans. Trump had built a lead of nearly 300,000 votes on the strength of same-day ballots that were disproportionately favorable to him. Now, with the eyes of the nation—and of the president—fixed on their state, Michigan Republicans scrambled to protect that lead.

Whitmer and Benson warned the GOP leaders that a protracted counting process, especially in the scenario of a competitive election, would invite chaos. Other states Trump carried in 2016, such as Ohio and Florida, allowed for pre-canvassing of absentee and other mail-in ballots so that voters would know which candidate carried the state on election night. Why couldn’t Michigan do the same?

Thomas had been “thrilled” with the professionalism he’d witnessed during Monday’s pre-processing session and Tuesday’s vote tabulating. Now, in the early morning hours of Wednesday, things were going sideways. Groups of Republican poll challengers were clustering around individual counting tables in violation of the rules.

“Reading these affidavits afterward from these Republican poll challengers, I was just amazed at how misunderstood the election process was to them,” Thomas chuckled. “The things they said were going on—it’s like ‘Yeah, that’s exactly what was going on. That’s what’s supposed to happen.’

His cushion over Biden had been whittled down to 70,000 votes. There remained hundreds of thousands of absentee ballots to be counted in the large, Democratic strongholds of Detroit, Lansing and Flint. The math was simply not workable for the president. Just before 9:30 a.m., Biden overtook Trump in the tally of Michigan’s votes—and suddenly, a switch flipped on the right.

After 24 hours of letting the democratic process work, Republicans around the country—watching Trump’s second term slipping through their fingers—began crying foul and screaming conspiracy. No state cornered the hysteria market quite like Michigan.

“The people outside that room were doing exactly what the law says you would eject people for doing—they were disrupting the election,” Thomas said. “Everyone else in the room—the Democratic Party, the Republican Party, the ACLU, the nonpartisans—they all still had a full complement of challengers in the room. And the Republicans, by the way, had far more challengers in the room than they were entitled to.”

Truly egregious was Cox’s dishonesty. At the time of her tweet, several hundred of her party’s poll challengers, attorneys and representatives were already inside the TCF Center monitoring the count

By law, Republicans were allowed to have 134 challengers in the room, one for each tabulation table. In reality, the GOP had far more than that, according to sworn testimony from nonpartisan poll watchers inside the TCF Center. Because of the overflow, election officials ultimately decided to lock down the complex

In the days following Trump’s shameful address to the nation, two realities became inescapable to Michigan’s GOP elite. First, there was zero evidence to substantiate widespread voter fraud. Second, they could not afford to admit it publicly.

What made this behavior all the more confounding, Thomas said, is that the election was conducted more transparently than any he’d ever participated in. Each of the 134 tables had monitors placed at the end, “showing every keystroke that was made,” so that challengers could see exactly what was happening

But he came to realize that none of this mattered. Having dealt with Republican poll challengers for decades, Thomas said, it was clear the people who infiltrated TCF on Wednesday were not adequately trained or there for the right reasons.

“Unlike the people who were there Monday and Tuesday, these people Wednesday were totally unprepared. They had no idea how the system worked. They had no idea what they were there for,” Thomas said. “Many of them—not all of them, but many of them—they were on a mission. They clearly came in believing there was mass cheating going on in Detroit and they were on a mission to catch it.”

When Trump addressed the nation from the White House on Thursday night, insisting the election had been “stolen” from him, he returned time and again to alleged misconduct in Michigan’s biggest city. Detroit, he smirked, “I wouldn’t say has the best reputation for election integrity.” He said the city “had hours of unexplained delay” in counting ballots, and when the late batches arrived, “nobody knew where they came from.” He alleged that Republicans had been “denied access to observe any counting in Detroit” and that the windows had been covered because “they didn’t want anybody seeing the counting.”

All of this was a lie. Republicans here—from Ronna Romney McDaniel to Laura Cox to federal and local lawmakers—knew it was a lie. But they didn’t lift a finger in protest as the president disparaged Michigan and subverted America’s democratic norms. Why?

The true insanity was saved for Detroit. By early afternoon on Wednesday, hundreds and hundreds of Republicans had descended on the TCF Center, responding to an all-hands-on-deck missive that went out from the state party and was disseminated by local officials. Cox, the party chair, tweeted out a video of her comrades standing outside the locked-up downtown building. “Republican poll challengers blocked from entering the TCF Center in Detroit! This is egregious!” she wrote.

Tapped by the president-elect to take over the Republican National Committee—on the not-so-subtle condition that she remove “Romney” from her professional name—McDaniel morphed into an archetype of the Trump-era GOP sycophant. There was no lie too outlandish to parrot, no behavior too unbecoming to justify, no abuse of power too flagrant to enable

Longtime friends worried that McDaniel wasn’t merely humiliating herself publicly; she seemed to be changing in private. She was no longer coolly detached from the passions of politics. If anything, she was turning into a true MAGA believer.

There was some relief, then, when in recent weeks McDaniel told multiple confidants that she doubted there was any scalable voter fraud in Michigan. Nevertheless, McDaniel told friends and fellow Republicans that she needed to stay the course with Trump and his legal team. This wasn’t about indulging him, she said, but rather about demonstrating a willingness to fight—even when the fight couldn’t be won.

McDaniel’s thinking is actually quite linear. The RNC will vote in January on the position of chair. She is anxious to keep her job.

No matter how obvious the outcome—to McDaniel, to the 168 members of the RNC, maybe even to Trump himself—any indication of surrender would be unforgivable.

This is why McDaniel has sanctioned her employees, beginning with top spokesperson Liz Harrington, to spread countless demonstrable falsehoods in the weeks since Election Day. It’s why the RNC, on McDaniel’s watch, tweeted out a video clip of disgraced lawyer Sidney Powell claiming Trump “won in a landslide” (when he lost by more than 6 million votes nationally) and alleging a global conspiracy to rig the election against him.

With Trump entering the anguished twilight of his presidency, all that appears to matter for someone like McDaniel—or Cox, the state party chair, who faces an upcoming election of her own—is unconditional fidelity to the president.

Both Chatfield and Shirkey are talented and ambitious, self-grooming for future runs at higher office. Both could see the obvious problems of meeting with the president at such a precarious moment—and both could also see how spurning Trump could torpedo their careers in the GOP.

“Frankly, continuing to humor him merely excuses his role in this. The election wasn’t stolen, he blew it. Up until the final two weeks, he seemingly did everything possible to lose. Given how close it was, there is no one to blame but Trump.”

“But if they want a future within the party, it is required of them to demonstrate continued fealty. Principled conservatives who respect the rule of law and speak out suddenly find themselves outcasts in a party that is no longer about conservativism but Trumpism. Just ask once-conservative heroes like Jeff Flake, Justin Amash and Mark Sanford.”

Monica Palmer, one of the GOP canvassers, caused an uproar when she offered to certify the rest of Wayne County—precincts like Livonia—without certifying Detroit. (Livonia, which is 95 percent white, had more poll-book irregularities than Detroit, which is 80 percent Black.)

Tweeting out siren emojis, Jenna Ellis, the attorney for Trump’s campaign, announced: “BREAKING: This evening, the county board of canvassers in Wayne County, MI refused to certify the election results. If the state board follows suit, the Republican state legislator will select the electors. Huge win for @realDonaldTrump.”

the notion that legislators would under any circumstance be free to send their own partisans to the Electoral College had no basis in fact. Under Michigan statute, the only electors eligible to represent Michigan are those who will vote for the winner of the popular vote. There is no discretion for anyone—the governor, leaders of the legislature, canvassers at the county or state level—to do anything but follow the law.

“The unfortunate reality within the party today is that Trump retains a hold that is forcing party leaders to continue down the path of executing his fantasy of overturning the outcome—at their own expense,”

precautions were taken. In a savvy move, Chatfield and Shirkey prepared a letter addressing concerns over funding to deal with Covid-19 in Michigan. They also brought along their general counsels. These two maneuvers—one to soothe the outcry over Michigan lawmakers meeting with a president whose legal team was calling for them to overturn the state’s election results; the other to insulate them from improper discussions about doing exactly that—were sufficient to sidestep any major crisis.

Trump, perhaps sensing the nervous reticence of his guests, did not make the ask they feared. As the meeting went on, it became apparent to some people in the room that more than anything, Trump had called his Michigan allies to Washington to get an honest assessment of what had happened there. He wanted to know if there was any pathway to victory. They told him there was not.

“I don’t get it,” the president said, venting confusion and frustration. “All these other Republicans, all over the country, they all win their races. And I’m the only guy that loses?”

With all 83 counties boasting certified results, the only thing that stood between Joe Biden and his rightful claim to Michigan’s 16 electoral votes was certification from the state board of canvassers. In a rational political climate, this would not have been the subject of suspense. But the swirling innuendo and disinformation had long ago swept away any semblance of normalcy.

Already, one of the board’s two Republicans, Norm Shinkle, a career party fixture, had hinted he would not vote to certify the state’s result. Because the two Democrats would obviously vote in favor of certification, a manic gush of attention turned to the other Republican member, Aaron Van Langevelde.

By Sunday morning, speculation was rampant that Van Langevelde would resign from the board on Monday. This made perfect sense to Republicans and Democrats alike: Based on their fact-finding mission into the mysterious fourth board member, Van Langevelde was a bookish type, a rule follower, an obsessive student of world history (particularly the Roman Empire) who believes to his core in a conservative application of the law

He would be inclined, Lansing insiders figured, to vote in favor of certifying the results. But he would be disinclined to throw away his future in the Republican Party. A resignation from the board was his only way out.

Working off this expectation, a late lobbying blitz turned on Shinkle. In the 36 hours preceding Monday’s vote, he was inundated with calls and emails and text messages from high-ranking Republican luminaries around the state. Some, such as former congressman and House Intelligence Chair Mike Rogers, urged him to certify the results in accordance with Michigan law. Others, including McDaniel and Cox and other state party figures, pleaded with Shinkle to stand his ground and insist on a two-week delay.

The response they got was universal: He would promise to “do my best,” then he would offer a litany of unsubstantiated allegations of fraud. (Not everyone bothered contacting Shinkle: That his wife served as a plaintiff’s witness in Trump’s ill-fated lawsuit against Detroit struck many people not just as a conflict of interest, but as a clear indication he would never vote to certify.)

Some Republicans didn’t want to believe it. But for others, reality began to set in. They had grown so accustomed to Republicans falling in line, bending a knee to Trumpism, that the notion of someone acting on his own personal ethic had become foreign.

But the more they learned about Van Langevelde, the more he sounded like just that type of independent thinker. Some viewed his relative youth as an asset, believing he wouldn’t risk throwing away his future in the party. What they had failed to appreciate was that young conservatives were oftentimes the most disillusioned with the party’s drift from any intellectual or philosophical mooring.

Like a good attorney, Van Langevelde meticulously questioned a number of expert guest speakers to ascertain if they had dissenting views of the board’s authority under state law. Time and again, they affirmed his position. The body did not have power to audit or investigate or recount; that could be done only by distinct bodies after certification was complete. The job of the board of state canvassers was narrowly to examine the certified results from all 83 counties and then, based on the relevant vote totals, certify a winner of Michigan’s 16 electoral votes. The one time he was challenged—by Spies, the political superlawyer representing John James’ U.S. Senate campaign—Van Langevelde calmly brushed his recommendations aside, telling Spies, “I’m going to have to respectfully disagree with you on that.”

Within minutes of Van Langevelde’s vote for certification—and of Shinkle’s abstention, which guaranteed his colleague would bear the brunt of the party’s fury alone—the fires of retaliation raged. In GOP circles, there were immediate calls for Van Langevelde to lose his seat on the board; to lose his job in the House of Representatives; to be censured on the floor of the Legislature and exiled from the party forever. Actionable threats against him and his family began to be reported. The Michigan State Police worked with local law enforcement to arrange a security detail.

ll for doing his job. All for upholding the rule of law. All for following his conscience and defying the wishes of Donald Trump.

“It took a lot of courage for him to do what he thought was right and appropriate, given the amount of pressure he was under,” said Brian Calley, the GOP former lieutenant governor, who told me days earlier that he had never heard the name Aaron Van Langevelde. “He carried himself as well as anybody I’ve seen in that type of setting, including people with decades and decades of experience. He showed an awful lot of poise.”

The name Van Langevelde is already so infamous in Michigan Republican lore that those associated with him are at risk of being branded turncoats, too.

because of the sweeping transformation of the party—not just ideologically or stylistically, but mechanically, with MAGA loyalists now installed in state and local leadership posts across the country—the question of loyalty will continue to define the Republican identity for years to come.

That contours of that identity—what it means to be a Trump Republican—have gained clarity over time. The default embrace of nationalism. The indifference to ideas as a vision for governing. The disregard for institutional norms. The aversion to etiquette and the bottomless appetite for cultural conflict. Now there is another cornerstone of that identity: The subversion of our basic democratic process.

More than any policy enacted or court vacancy filled, Trump’s legacy will be his unprecedented assault on the legitimacy of the ballot box

Future iterations of the GOP will make casual insinuations of voter fraud central to the party’s brand. The next generation of Republicans will have learned how to sow doubts about election integrity in one breath and in the next breath bemoan the nation’s lack of faith in our elections, creating a self-perpetuating justification to cast suspicion on a process that by raw numbers does not appear conducive to keeping them in power.

“This is not some whacked-out fringe,” James said in one taping. “When half the votes in our state believe we just had the most secure election in U.S. history, and the other half believe they were cheated, we have a problem.”

James is right. We do have a problem. Our elections continue to be underfunded. Our election bureaus are chronically understaffed. Our election workers are badly undertrained. Our elections are prone to a significant amount of human error—and any municipal or county clerk will tell you that concerns over not catching those errors keep them up at night.

But errors are not fraud. And when James says he’s troubled that half of Michigan’s voters feel they were cheated, he would do well to remember that he was the one telling them they got cheated in the first place.

there is no denying the advent of a pattern. Republicans in Michigan and across America have spent the past three weeks promoting baseless allegations of corruption at the ballot box, the rabid responses to which they use as justification to continue to question the fundamental integrity of our elections. It’s a vicious new playbook—one designed to stroke egos and rationalize defeats, but with unintended consequences that could spell the unraveling of America’s democratic experiment.

“By capriciously throwing around these false claims, you can’t get to the heart of a really important issue. In fact, you lose any credibility to get to the heart of that issue,”

“And by the way, if you’re going to do an audit, you’d better do it statewide. This is not just a Detroit thing. There are sloppy Republican precincts all over the state.

There is no immediate way to make Americans appreciate this distinction, no instant cure for the flagging confidence in our elections.

there are obvious incremental steps to take in the name of transparency and efficiency. First among them, acknowledged Chatfield, the Michigan House speaker, is getting rid of the rules that led to the TCF Center circus in the first place.

one of the items where we should look at other states and see how they’ve done it well, is regarding the early processing of absentee ballots. We mishandled that this year. We should have allowed for early processing. We didn’t, and it became a spectacle.

For those Republicans left to pick up the pieces in the coming legislative session, there may be little incentive for bipartisan cooperation on a subject that now divides the two party bases as starkly as gun rights or tax rates. The backlash against absentee voting from Republican constituents was already fierce; in the wake of Trump’s defeat and the TCF Center conspiracies, Republicans might find it beneficial to avoid raising the issue at all.

There is little cause for optimism. If the majority of GOP politicians couldn’t be bothered to do the easy work of debunking crackpot conspiracy theories, how likely are they to do the hard work of hardening our democracy?

“A lot of our leaders in this country ought to be ashamed of themselves,” said Thomas, the nonpartisan elections guru who kept Michigan’s governing class guessing his political affiliation for the past several decades. “They have propagated this narrative of massive fraud, and it’s simply not true. They’ve leapt from some human error to massive fraud. It’s like a leap to Never Neverland. And people are believing them.

“The people of this country really need to wake up and start thinking for themselves and looking for facts—not conspiracy theories being peddled by people who are supposed to be responsible leaders, but facts,” Thomas said. “If they’re not going to be responsible leaders, people need to seek out the truth for themselves. If people don’t do that—if they no longer trust how we elect the president of the United States—we’re going to be in real trouble.”

But the diagnoses had a lucrative side effect: They let the insurers collect more money from the federal government’s Medicare Advantage program.

Medicare Advantage, a private-sector alternative to traditional Medicare, was designed by Congress two decades ago to encourage health insurers to find innovative ways to provide better care at lower cost.

by next year, more than half of Medicare recipients will be in a private plan.

a New York Times review of dozens of fraud lawsuits, inspector general audits and investigations by watchdogs shows how major health insurers exploited the program to inflate their profits by billions of dollars.

The government pays Medicare Advantage insurers a set amount for each person who enrolls, with higher rates for sicker patients. And the insurers, among the largest and most prosperous American companies, have developed elaborate systems to make their patients appear as sick as possible, often without providing additional treatment, according to the lawsuits.

As a result, a program devised to help lower health care spending has instead become substantially more costly than the traditional government program it was meant to improve.

Eight of the 10 biggest Medicare Advantage insurers — representing more than two-thirds of the market — have submitted inflated bills, according to the federal audits. And four of the five largest players — UnitedHealth, Humana, Elevance and Kaiser — have faced federal lawsuits alleging that efforts to overdiagnose their customers crossed the line into fraud.

The government now spends nearly as much on Medicare Advantage’s 29 million beneficiaries as on the Army and Navy combined. It’s enough money that even a small increase in the average patient’s bill adds up: The additional diagnoses led to $12 billion in overpayments in 2020, according to an estimate from the group that advises Medicare on payment policies — enough to cover hearing and vision care for every American over 65.

Another estimate, from a former top government health official, suggested the overpayments in 2020 were double that, more than $25 billion.

The increased privatization has come as Medicare’s finances have been strained by the aging of baby boomers

Medicare Advantage plans can limit patients’ choice of doctors, and sometimes require jumping through more hoops before getting certain types of expensive care.

At conferences, companies pitched digital services to analyze insurers’ medical records and suggest additional codes. Such consultants were often paid on commission; the more money the analysis turned up, the more the companies kept.

they often have lower premiums or perks like dental benefits — extras that draw beneficiaries to the programs. The more the plans are overpaid by Medicare, the more generous to customers they can afford to be.

Many of the fraud lawsuits were initially brought by former employees under a federal whistle-blower law that allows them to get a percentage of any money repaid to the government if their suits prevail. But most have been joined by the Justice Department, a step the government takes only if it believes the fraud allegations have merit. Last year, the department’s civil division listed Medicare Advantage as one of its top areas of fraud recovery.

In contrast, regulators overseeing the plans at the Centers for Medicare and Medicaid Services, or C.M.S., have been less aggressive, even as the overpayments have been described in inspector general investigations, academic research, Government Accountability Office studies, MedPAC reports and numerous news articles,

Congress gave the agency the power to reduce the insurers’ rates in response to evidence of systematic overbilling, but C.M.S. has never chosen to do so. A regulation proposed in the Trump administration to force the plans to refund the government for more of the incorrect payments has not been finalized four years later. Several top officials have swapped jobs between the industry and the agency.

The popularity of Medicare Advantage plans has helped them avoid legislative reforms. The plans have become popular in urban areas, and have been increasingly embraced by Democrats as well as Republicans.

“You have a powerful insurance lobby, and their lobbyists have built strong support for this in Congress,”

Some critics say the lack of oversight has encouraged the industry to compete over who can most effectively game the system rather than who can provide the best care.

“Even when they’re playing the game legally, we are lining the pockets of very wealthy corporations that are not improving patient care,”

In theory, if the insurers could do better than traditional Medicare — by better managing patients’ care, or otherwise improving their health — their patients would cost less and the insurers would make more money.

But some insurers engaged in strategies — like locating their enrollment offices upstairs, or offering gym memberships — to entice only the healthiest seniors, who would require less care, to join. To deter such tactics, Congress decided to pay more for sicker patients.

Almost immediately, companies saw ways to exploit that system. The traditional Medicare program provided no financial incentive to doctors to document every diagnosis, so many records were incomplete

Under the new program, insurers began rigorously documenting all of a patient’s health conditions — say depression, or a long-ago stroke — even when they had nothing to do with the patient’s current medical care.

But for insurers that already dominate health care for workers, the program is strikingly lucrative: A study from the Kaiser Family Foundation, a research group unaffiliated with the insurer Kaiser, found the companies typically earn twice as much gross profit from their Medicare Advantage plans as from other types of insurance.

The insurers also began hiring agencies that sent doctors or nurses to patients’ homes, where they could diagnose them with more diseases.

Cigna hired firms to perform similar at-home assessments that generated billions in extra payments, according to a 2017 whistle-blower lawsuit, which was recently joined by the Justice Department. The firms told nurses to document new diagnoses without adjusting medications, treating patients or sending them to a specialist

Nurses were told to especially look for patients with a history of diabetes because it was not “curable,” even if the patient now had normal lab findings or had undergone surgery to treat the condition.

Adding the code for a single diagnosis could yield a substantial payoff. In a 2020 lawsuit, the government said Anthem instructed programmers to scour patient charts for “revenue-generating” codes. One patient was diagnosed with bipolar disorder, although no other doctor reported the condition, and Anthem received an additional $2,693.27, the lawsuit said. Another patient was said to have been coded for “active lung cancer,” despite no evidence of the disease in other records; Anthem was paid an additional $7,080.74. The case is continuing.

The most common allegation against the companies was that they did not correct potentially invalid diagnoses after becoming aware of them. At Anthem, for example, the Justice Department said “thousands” of inaccurate diagnoses were not deleted. According to the lawsuit, a finance executive calculated that eliminating the inaccurate diagnoses would reduce the company’s 2017 earnings from reviewing medical charts by $86 million, or 72 percent.

Some of the companies took steps to ensure the extra diagnoses didn’t lead to expensive care. In an October 2021 lawsuit, the Justice Department estimated that Kaiser earned $1 billion between 2009 and 2018 from additional diagnoses, including roughly 100,000 findings of aortic atherosclerosis, or hardening of the arteries. But the plan stopped automatically enrolling those patients in a heart attack prevention program because doctors would be forced to follow up on too many people, the lawsuit said.

Kaiser, which both runs a health plan and provides medical care, is often seen as a model system. But its control over providers gave it additional leverage to demand additional diagnoses from the doctors themselves, according to the lawsuit.

At meetings with supervisors, he was instructed to find additional conditions worth tens of millions of dollars. “It was an actual agenda item and how could we get this,” Dr. Taylor said.

Last year, the inspector general’s office noted that one company “stood out” for collecting 40 percent of all Medicare Advantage’s payments from chart reviews and home assessments despite serving only 22 percent of the program’s beneficiaries. It recommended Medicare pay extra attention to the company, which it did not name, but the enrollment figure matched UnitedHealth’s.

Even before the first lawsuits were filed, regulators and government watchdogs could see the number of profitable diagnoses escalating. But Medicare has done little to tamp down overcharging.

Several experts, including Medicare’s advisory commission, have recommended reducing all the plans’ payments.

Congress has ordered several rounds of cuts and gave C.M.S. the power to make additional reductions if the plans continued to overbill. The agency has not exercised that power.

The agency does periodically audit insurers by looking at a few hundred of their customers’ cases. But insurers are fined for billing mistakes found only in those specific patients. A rule proposed during the Trump administration to extrapolate the fines to the rest of the plan’s customers has not been finalized.

Ted Doolittle, who served as a senior official for the agency’s Center for Program Integrity from 2011 to 2014, said officials at Medicare seemed uninterested in confronting the industry over these practices. “It was clear that there was some resistance coming from inside” the agency, he said. “There was foot dragging.”

few analysts expect major legislative or regulatory changes to the program.