Late Night Thoughts on the Patriot Act: Size Matters

With George W. Bush paying his last tribute to European allies, and the potential for a strategic inflection point with the choice for a new American president, here are some thoughts for more benign supporters of the current administration (i.e. myself) on what I consider the President’s most enduring legacy of his mandate, namely The Patriot Act of 2001. It’s just my musings on intentions.

My aim here is to demonstrate how a single action can be perceived (and proven to be) both a success and a failure. First, I will outline the a priori argument, which shows the Patriot Act as an example of successful Congressional oversight. Second, I will look at the problem from an a posteriori approach, and try to show how and why the Patriot Act can also be perceived as a failure of Congressional intelligence oversight.

An a priori approach emphasizes the honorable intentions that prompted an action in the first place. An a priori argument is the notion that bad things are sometimes the right thing to do, not because the end is good, but because the motive is good. This argument falls in the domain of ontological ethics developed by the philosopher Emanuel Kant. In analyzing ulterior motives, Kant points out that something could look good, and really be bad, and vice versa. He argues that only if an action springs from a desire to do good with no expectation of reward or benefit, is the action truly good, and goes on to discuss under what conditions will people do good without ulterior motives and/or expectations. The answer is “duty”. Leo Strauss has summarized Kant’s doctrine succinctly: “The moral worth of an action proceeds from the goodness of the will by which that action is animated, which in turn means the purity of that will – the goodness of the will in its abstraction from every empirical end. Purity of will implies purification of the will of all substantive intention, the animation of the will only by its self-respect, its respect for the formal principle of will in general, in other words respect for law as such. Duty itself means the necessity of performing an action out of respect for law.”

When the Patriot Act was signed into law in 2001, it met with almost unanimous support from all directions of the political spectrum. It was seen as “the right thing to do”, as the nation’s “duty” to protect the ultimate raison d’etre of a democratic state – the rule of law (or in Kantian terms, Rechtstaat). Congress approved the Patriot Act in order to try to better deal with the new challenges emerging in the geopolitical arena: the rise of non-state, transnational and asymmetric threats, most notably exemplified by the 9/11 terrorist attacks. While terrorism is not a new phenomenon, 21st century transnational terrorism poses an unprecedented challenge. It challenges the institutional and legal foundation of intelligence by combining features of both internal and external threats because it operates both inside and outside boundaries. The Patriot Act was successful in identifying this new challenge and saw to it that former strict divisions between external and internal intelligence, i.e. between the CIA and the FBI, erected in the aftermath of Watergate in the 1970s, were less strictly enforced. It allowed for freer and better information exchange and collaboration between the different intelligence agencies, including the FBI. Further, it allowed non-citizen terrorist suspects to be detained for up to 7 days without a hearing, and in some cases where an individual was certified to be a threat, it allowed that the individual could be held indefinitely. Moreover, non-citizens, who were found to have raised funds for terrorist activities could be deported. The FBI was granted greater freedom in accessing electronic communications. The Treasury was authorized to order banks to reveal sources of suspicious accounts and sanction uncooperative institutions.

Having looked at the Patriot Act from an a priori point of view, which shows that Congressional oversight was, for all intents and purposes – doing one’s duty in the name of national security – good in its inceptions, I would like now to turn to an a posteriori approach and show the results, and to a large extent unintended consequences, of the passing of the Patriot Act. It could be argued that the Patriot Act has, in a number of ways, infringed upon the notion of good governance as understood in a democratic society.

An a posteriori argument is a classic example of Aristotelean teleological ethics, according to which the end justifies the means. In other words, sometimes bad things need to happen because the consequences are good. Timing plays a major role in teleological ethics, with a focus on short-term consequences sometimes taking precedence over long-term. If we want to speak of the Patriot Act as a failure of Congressional intelligence oversight, it is precisely the failure of focusing on the short-term rather than the long-term consequences. Thus, while the Patriot Act enabled greater access to information and inter-agency cooperablity, it did so at the expense of departing from constitutional norms and civil rights and liberties which characterize democracy, with dire consequences for the U.S.’ public image both on the national level and abroad.

An a priori approach is one essentially based on retribution, eye for an eye, and is incompatible with the rule of law. It postulates that people who lie, deceive, or otherwise treat other people as a means to an end, deserve to be treated in exactly the same way. Since the war on terrorism is not a traditional military one, but rather politico-ideological and psychological, the aim of terrorist groups to destroy Western values, namely, to erode and destroy democratic institutions and governance, the Patriot Act has done little to reinforce democratic values. Instead, it has focused on revenge and the application of tactics which may have sufficed to deal with Cold War threats, but have clearly come short in addressing 21st century challenges and threats. Blurring the division between external and internal intelligence, while honorable in intent, has produced a number of unintended bad consequences for civil rights: uninformed surveillance of individuals, not always justified infringements on the “rights” of immigrants, asylum seekers an ethnic and religious groups, limiting or altogether eroding the rule of law that everyone should be treated equally before the law.

In conclusion, since it is mainly the internal intelligence activities that have come under attack in light of the civil rights infringement debate, Congress would do well to focus on those provisions of the Patriot Act which deal with foreign intelligence, allowing greater freedom of action, while enforcing stricter control, supervision and oversight internally. It should be careful to avoid extreme positions which leave little room for flexibility and adaptability. The rigidity of categorical imperatives are simply ill-suited to deal with the threat of transnational terrorism. Whatever approach Congress decides to adopt in the future, it should leave enough space for manoeuvring as the external and internal environments change. It should also develop the capability to respond as close to real-time as possible as an inability to do so will undermine even the most successful policy or approach. I came across a blog entry recently, entitled “Is your watchdog a lapdog or an attack dog?” Humor aside, let us not fool ourselves: neither a Bolognese nor a Rottweiler make for good watchdogs; size matters, but so does personality. Personally, I would feel safer with a German Shepherd.

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Possible Sources of Future Intelligence Failure

Russ Travers’ article written in the eve of 9/11 does sound sinister in retrospect in that he points to shortcomings in the intelligence community, which did, sure enough, manifest themselves in a major calamity. This, at least, was my impression after reading his article the first time. However, on a second read, I began to question his Cassandric powers because for every shortcoming he identified, I could think not only of a historical precedent, but also of a current analogy. This makes me question to what extent we are truly fooling ourselves that an event such as 9/11 can ever be predicted and/or avoided. Further, to what extent were measures to carry out an intelligence reform a knee jerk reaction to the dramatic tragedy of 9/11? Are we, 7 years later, talking about major intelligence reforms as a response to the 9/11 “failure”, or is the question more intrinsic in nature? What if 9/11 hadn’t occurred? Would the same intelligence reforms be important to implement? Are the reforms we are talking about reactive or proactive in nature?

The shortcomings Travers discusses in his 2001 article seem to me to have changed very little. So little, in fact, that today we’re having the same debates and still trying to convince – the community? the executive branch? the legislative branch? ourselves as individuals? – that more radical change is needed. We seem to be stuck in limbo land, in the Death valley described by Grove, in a deadlock argument that falsifies the past and obscures the future. I will enumerate here a few examples from Travis that seem to be particularly pertinent, and I would like to refer to them as

Unfinished Business

“Data was there,” he says, “but we failed to recognize fully their significance and put them into context.”

This is hardly an original excuse. Examples of this kind abound from myth, to history, to literature, to our own personal relationships. Essentially, this is a cognitive problem and solutions to it might be physically limited. Seen from an anthropological perspective, in primitive cultures, it is the role of god(s) to encode a message. The message is then recognized (best case scenario, but not a given) by mortals as a portent of something (usually ominous), and interpreted or decoded by an oracle (often in such a way that the interpretation is equally ambiguous), whereupon the mortal, fearful of the divine message but emboldened by the oracle interpretation, makes a decision and acts on it. Sometimes it is the right decision; other times it is not.

I apologize for the following diversion, but I include it here because I think it illustrates the difference in cognitive processes between encoding, decoding and interpreting a message.

In his essay “Sema and Noesis: Some Illustrations”, G. Nagy [NAGY, G., “Sema and Noesis: Some Illustrations“, Arethusa 16, 1983, pp. 35-55.] examines the etymology and use of cognition vocabulary in Homer. He establishes the word sema ‘sign’ as a cognate to the Indic dhyama ‘thought’. Sema is found in the roots of our modern English words ‘semiotic’ and ‘semantic’, pointing to a relation with the mental process of thinking. In Greek, this connection appears in the words noos ‘mind, sense, intelligence’ and its derivative verb noeo ‘perceive, take note, think’, along with the derivative noun noesis. The etymology of noos has been traced back to the Indo-European root *nes- meaning something like ‘return to light and life’. Nagy points out that sema is “the key to a specific aspect of cognition, namely recognition.” (p.36) Most frequently sema is used in Homeric epic in the context of the recognition of Odysseus by his philoi ‘those near and dear’. The activity which denotes the recognition of the sema is the verb anagignosko. What is more important is that the recognition of the sema is an act of interpretation. On several occasions when Zeus sends a lightning (sema), its interpretation is different according to who the interpreter is (Il. 2.353, 9.236, 13.244, 21.413, etc.) or in the words of Nagy: “a code bearing distinct messages that are to be interpreted in context by both the witness and the narrative itself.” (p.36)

The place where recognition occurs is the noos. Thus Alki-noos ‘notices’ that twice the disguised Odysseus weeps whenever the bard sings about the Trojan War (Od. 8.94, 8.533), which enables him to recognize the true identity of his guest. By contrast, the leader of the suitors is named Anti-noos, as both he and his comrades fail to recognize the many signs (semata) signaling their doom. (Od. 22.8-30)

A sema can be properly interpreted only in the context of knowing its relation to other semata in any given situation. The example Nagy provides is that the recognition of the Dog Star as a sema (Il. 22.30) depends on the knowledge of the position of the other stellar semata.

Two further examples:

In book 6 of the Iliad, Proetus sends Bellerophon to Lycia carrying a tablet, inscribed with “murderous signs”. Bellerophon cannot read what spells his death, but the king, for whom the message is intended, does, and upon reading the instructions, sends Bellerophon to death:

He quickly sent him off to Lycia, gave him tokens,
Murderous signs, scratched in a folded tablet,
And many of them too, enough to kill a man.
(Il. 6. 198-200)

When the king receives the “fatal message” (210), he identifies it as a sema (217) and kills Bellerophon.

In book 7 of the Iliad, Ajax and other Greek heroes decide to draw lots among themselves to see who will meet Hector in a single combat. The horseman gives the command for the lots to be shaken “and each soldier scratched his mark on a stone and threw it into Atrides Agamemnon’s helmet” (202-3). After the lot is drawn and the herald takes it through the ranks, none of the heroes recognize the mark except for Ajax, to whom it belongs. This is important also because it establishes a connection between the two passages in that the manner in which the “inscription” communicates the message independently of whatever graphs it may contain. Regardless of the way it is spelled, the message can be encoded only by the one who knows the relation between this particular sema and its context. To everyone else, it is meaningless.

The problem of noise vs.signal in the context of intelligence analysis is, I believe, rather similar to the examples above. These days, we might not rely on oracles to interpret the divine significance for us, but our faith in science and technology to do that are not that different. I have no formal training in cognitive science, but through amateur interest in the subject, I remember reading that the thought process is a lot more demanding on the brain than the process(?) of belief. Our cognitive biases are precisely that: beliefs that are easier to hold onto than the energy required to make a couple of neurons rub and produce a spark.

The word “context”, so often featured in intelligence debates, has always struck me as rather strange. What does it mean to put something into context? It means to see where a particular piece fits in the whole. It is to have, yet another cliché, a “big picture” view of the problem. A noble enterprise. Have we become that self-delusional that we think we are capable of playing God? Or is it that we aspire to create an intelligence community that is nothing short of a conglomerate of Olympians? Viewed through the prism of 9/11 or any other dramatic historical event, perhaps a better way of reform would be to recognize that there are limitations to our cognitive capabilities, and that there will be times when we will not be able to predict the future, short or long-term. In fact, in front of events of such magnitude as 9/11, phrases such as “the near future”, “the foreseeable future”, etc. are utterly irrelevant. Chances are, on 9/10 the analysts preparing the PDB for the following day, as well as anybody else, would have most likely seen no threat in the “foreseeable future”.

Another shortcoming of the intelligence community Travers talks about is the lack of adequate response to increased complexity of military, social and cultural factors. He says that not only was there no agency “postured” to conduct integrated analysis that would reflect this increasing complexity and interconnectivity, but that a deliberate “division of labour”, i.e. commissioning separate military, economic and political analyses, will lead to failure because such divisions do not reflect the external environment. True enough, such artificial divisions present a Platonified view of reality, and as Travers maintains, they result in Balkanization of competencies, leaving little room for competitive analysis while making the exposure to risk and failure ever greater. I do not know to what extent reforms toward fusion analysis have been implemented in the intelligence community since the writing of this article. From the on-going debates one reads about in declassified sources, it would seem, progress has been slow. On the other hand, it seems that the need to give up the silo structure and replace it with more holistic methods, has been clearly understood and supported by academic institutions geared toward preparing a new crop of analysts. Taking courses at the Mercyhurst Institute for Intelligence Studies has made this evident to me for the past year.

The lack of fusion as a result of division of labor has even more important consequences still. It results, as Travis says, in the view that the whole is less than the sum of its parts, which I think brings my argument full circle to the notion of “the big picture”: no big picture, no context.

Finally, Travers speaks of a lack of a systematic national security policy. He claims that security policy is conducted on an ad hoc basis, in response to whatever happens to trigger a given administration’s knee jerk reaction. This is another intrinsic problem which, although not stemming from the intelligence community, it greatly affects it. How? We can call Grove to our help here. Clarity and determination are qualities that Groves associates with a successful transition period of a company. In my opinion, the intelligence community still lacks both the clarity and the determination to transform itself. On one hand, lack of systematic security policy (clarity) results in unclear prioritization. On the other hand, lack of strong leadership to show the way forward through personal example undermines the ability to carry out significant reforms. Moreover, all these factors – lack of vision and clarity, and weak determination, contribute to demoralizing the work force. Grove points out that “Demoralized organizations are unlikely to be able to deal with multiple objectives in their actions. It will be hard enough to lead them out with a single one.” (p.151)

I saved the point of leadership till the last because I believe it is the one of most significant importance in the circumstances we are facing in 2008. Thinking of potential dooms day scenarios to answer this week’s contextual assignment question, I thought of various Armageddon options, but none rings as devastating as what Roger Kimball describes as “cultural suicide” in an essay entitled “What We Are Fighting for: The Example of Pericles”. In this essay, Kimball compares the 5th century B.C. Athens of Pericles with the U.S. today, using Pericles’ Funeral Oration to illustrate the similarities of fighting for freedom and democracy – intrinsic characteristics of both Athenian society in antiquity and American society today. Among the attributes he praises are the vigilance and sense of responsibility of the citizens who under a democratic government enjoy certain common privileges, but also share common responsibilities, as well as the impulse to achieve, to excel, and to surpass. Kimball laments that the concept of democracy today has been abused by people “fighting for their rights”, but giving little back to society. He calls democracy a substitute for mediocrity, a “shorthand for…lowering standards and pursuing them as instruments of racial or sexual redress or some other form of social re-engineering.” (p.73) In that sense, Pericles’ oration is a refreshing departure from mediocrity in that it calls the people of Athens to mobilize their spirit and act in defense of excellence and a “healthy competitive spirit”. The speech, of course, is set up against the backdrop of the enemy – Sparta, whose way of life and political system is in contrast to that of Athens. For Kimball, and I concur with his analogy completely, “The spectacle of radical Islamists dancing joyfully in the street when news broke of the September 11 attacks on New York and Washington should remind us of that fact.” More than a surprise attack or intelligence failure, more than an attack on capitalist symbolism or American citizens, 9/11 was an attack on Western value systems as described by Pericles two and a half thousand years ago.
Kimball goes on to identify some shattered illusions in the West as a result of 9/11, more notably shattered fantasies of academic multiculturalists, the illusion that the world is a benevolent, peace-loving place, and that the use of power by the powerful is by definition evil. I think he is being optimistic about the shattering of these illusions. I think they are still here today, more persistent in some sectors than others, but widely ubiquitous in academia (especially the social sciences) and the media. The intelligence community, and the whole security sector, needs the type of Periclean leadership that will drive it forward toward achieving excellence and taking responsibility for its actions while weeding out the elements of mediocrity, complacence and resignation. Starting with a clear definition of what intelligence can and cannot do, this new leadership will have to define realistic parameters for transformation.

 

9/11 – An Intelligence or a National Failure

It seems to me that stress on intelligence failure has been so inflated in recent years, to the point of becoming practically an idée fix within the community and its critics from the political and media spectrums. The amount of time spent bickering about whose fault 9/11 was or whether it could have been prevented and engaging in sophist word battles gives credit neither to the intelligence community Rovner and Long defend so passionately nor Ms Zagart’s ivory tower of political science with a dash of organizational management theory.

So, while I ultimately agree with Rovner and Long that 9/11 was not an intelligence but a national failure, I also think both “sides” are striving toward the same goal, i.e. improved intelligence capabilities, and in light of this they both have valuable contributions to make to the debate how this can be achieved, without turning the issue into a polemic.

I think the inflated stress on intelligence failure is a U.S. phenomenon. I’m not aware of any other country which spends half as much time on public debates with regard to intelligence capabilities and intelligence failure. As a patron of democracy, human rights and civil liberties, perhaps it is inevitable that such debates should be made public in the U.S., but perhaps it is not inevitable that they should be let to linger on indefinitely. My personal opinion, which I know will rub many people the wrong way, is that civil rights activists’ debates add oil to the fire rather than help extinguish it. Scapegoatism is rampant in the political sphere. It is an unsavory characteristic not exclusive to policy-makers but also to journalists, intelligence professionals, law enforcement…the whole gamut of professionals dedicated to serving the public. And since most people who get into this “business” do so out of their best intentions to fulfill their duty to society, when something goes wrong, no one will voluntarily accept the blame. What is so unfortunate about this all too human characteristic is that it is a complete waste of time and it results in no constructive solutions. In this sense, I completely agree with Grove’s observation that clarification can only come through broad and intensive debate, but a debate, I would like to add, where instead of finger-pointing, the ideas, recommendations, and concerns of all stakeholders are aggregated in the quest to find a way out of the rut.  Having scrutinized both Zegart’s and Rovner/Long’s arguments, it would seem that such an aggregation of ideas and recommendations is entirely possible, when we take aside the issue of blame.

What I liked about Zegart’s arguments was that they were relativistic rather than either-or propositions. Her distinction between change and adaptation is relativistic in that she places maximum importance on the impact of an occurrence rather than the occurrence itself. Time and again she argues that the question is not whether changes are needed in the structure and processes of the intelligence community, but how big the impact of these changes is going to be.

Similarly, when Grove describes his meeting with a CEO in dire straits, who faced with a strategic inflection point implemented some minor cosmetic changes on the periphery, rather than taking the radical approach needed under the circumstances, I became more and more convinced of the importance of the “how” over the “what”.

Increasingly, the “how fast” also seems to be gaining ground over the “what”. Zagart laments why it took so long for the intelligence community to put Khalid al-Mihdhar on the State Department’s watch list. Rovner agonizes over the alleged inactiveness of decision-makers to take action upon the strategic and tactical warning he believes the community provided prior to 9/11. And in the corporate world, Grove speaks of the too-little-too late syndrome that acts as a “force paralizer” (my emphasis) to business survival. All these examples made me think of our perception of speed, and whether it really is cognitively possible for us to react as swiftly as we wish as the speed of unfolding events increases. For example, while sitting in a fast moving car, we hardly realize or feel the “real” speed until a moment of collision. Until that point, we are passive observers of the speed. But once a collision occurs or the car spins out of control, we are suddenly in the middle of the action. Usually, at moments like this, characterized by extreme speed, instinct and gut feeling kick in, and more often than not, it is precisely the lack of inspection/retrospection that saves us.

Zagart bases her arguments on four findings based on her qualitative analysis of the intelligence community’s failure to adapt to new threats: lack of “corporateness”, insufficient HUMINT, personnel skills in non-Romance foreign languages, and weakness in setting priorities.

Let’s look at “corporateness” first. Her proposal that the community should become more centralized has some merit. A more centralized IC, will I believe not alleviate all problems of data sharing because that’s ultimately a culture problem, but it could at least pave the road, so to speak. Uniform personnel policies and centralized priorities setting body could help build a stronger community identity as well as give more focus and clarity. This is similar to what Grove proposes for the later stages of a strategic inflection point. If chaos is what rules the community as a result of its decentralization, then “clarity of direction which includes describing what we are going after as well as describing what we will not be going after is exceedingly important at the late stage of a strategic transformation.”

Rovner and Long, on the other hand, see the matter quite differently. They suggest that the structure of the community should be reflective of the structure of the external environment, namely that in the face of transnational threats and a multipolar system of power in the international arena, the community will not benefit by adopting a centralized approach because the latter is better suited to bipolar balance of power.  They suggest instead that a decentralized structure will help connect people who would normally not connect under a hierarchical centralize structure, very much in the way that social networking software has enabled people to form clusters of interest via various web 2.0 technologies.

I’m not sure what the right approach is as I can see benefits to both. In mirroring the external environment, the community would resemble an animal that changes its skin and color to blend in thereby avoiding danger, but at the same time giving it a better opportunity to take the enemy by surprise. This is certainly a practical idea, if not entirely ethical. Zagart’s proposition that a combination of centralization and decentralization is possible through deciding “what, how, and how much to centralize” is, I think, a viable option.

Further, Zagart makes an interesting, if gloomy, connection to population ecologists’ theory that innovation happens as a result of old organizations being replaced by new ones. This points to an inherent weakness in government agencies, namely that the lack of competition at the public sector level breeds stagnation and mediocrity. Her subsequent recommendations for community-wide training and rotational assignments as way to build trust between the different agencies and create a new culture through a collective mind-set transformation is not only well formulated, but it is something with which even her critics Rovner and Long might agree. Measures of this kind are not a question of “reorganization”, which Rovner and Long remain unconvinced will result in improved capabilities. A change of mind-set is a conceptual measure with long-reaching strategic impacts. It is the type of radical change that Grove describes as opposed to the minor changes on the periphery.

Rovner’s advocacy for reforms focusing on improving analytic techniques, increasing the quality of new hires, and retaining long-term professionals” are precisely the type of steps necessary for changing a mind-set.  It seems, Ms Zagart and Mr Rovner should get together for a brainstorming session instead of stoking petty arguments about blame. Ultimately, the blame discussion is a theosophical one. If you believe that God has foreknowledge of everything, then you’re likely to find solace in the fact that your own actions are never to blame. If you believe in free will, accepting responsibility might come more “naturally”. I would recommend the policy-makers, intelligence analysts, management gurus and journalists with the former tendency to (re)read Sophocles’ Oedipus Rex.

Finally, I decided to follow Grove’s guiding questions in identifying whether a change signals a strategic inflection point and apply them in the context of national security intelligence:

Question 1: Is your key competitor about to change? Identify your key competitor with the “silver bullet” test: if you had just one bullet who would you save it for?

Now, up till 1991, that answer would undeniably have been Russia. In 2008, can we with any certainty say who we’re saving the bullet for? I think not. I think it is impossible to answer this question at the present moment of time. This, then clearly indicates that we are facing a strategic inflection point. Like the fairy many-headed dragon, we are facing a multipolar spectrum of threats, which because of their interconnectedness, it is impossible to determine which one will affect us more severely than others.

Question 2: Is your key complementor about to change? Does the company that in past years mattered the most to you and your business seem less important today?

Yes and yes. I take here the key complementor to be Europe, at least traditionally. Europe’s spheres of influence on the international arena are waning in pretty much every field: economic, demographic, military, and so on. Trans-Atlantic relations are suffering from the same type of internal bickering about blame that was discussed above. NATO is suffering from a similar identity crisis it suffered at the time of writing the Harmel report in the late 1960s. Regional organizations, such as the Shanghai Cooperation Organisation are strong competitors to the trans-Atlantic alliance in the struggle for power and influence. China and India are both excellent potential new complementors and competitors simultaneously. An emerging new energy powerful but disgruntled Russia should definitely remain on the radar. After all, it is precisely that which Mr Putin wants – respect.

Question 3: Do people seem to be “losing it” around you?

Well, I’m not sure if they’re “losing it” more now than in the past, but a sense of pending gloom and doom is certainly in the air: lapses in relation to long-standing conflicts, emergence of new conflicts, increase in nationalistic rhetoric, melting glacials…

In short, yes, all the signs are here that we are in a strategic inflection period, head on. So, when thinking about re-organization and reform, we should not forget the “strategic” part of this transformation. Marginal changes won’t do. A radical change is needed not on an operational but a conceptual level, and maybe also on a more spiritual level, namely, recognizing that, free will comes with the price tag of taking responsibility for one’s actions.