READINGS: JULY 12
Agent Rowley Blows the Whistle

Description of Situation
It seems like a misnomer to classify FBI Special Agent Colleen Rowley's action as official disobedience. After all, she broke no law by writing an open letter to FBI Director Robert Mueller. No classified information was revealed and no agent was exposed by the act. All she did was write a letter that exposed what she perceived to be a communication disconnect between field office agents and FBI Headquarters. Of course, the fact that her accusations involve the obstruction of her field office in its pre-9/11 investigation of sleeper cell terrorist Zaccarias Moussaoui made the revelations all the more explosive. Though her actions might certainly be classified by some as a breach of professional ethics in the sense of violating internal norms and standards of accountability to her immediate superiors, that relationship is the least fundamental, according to Cooper--but even more so because she made it crystal clear that mid-level supervisors at FBIHQ were the problem. There was a unhealthy amount of inertia among these mid-level careerists that seemed to be obstructing the acute pressure she and other agents felt for responsiveness. That pressure was not being transmitted upward as in a healthy hierarchy. By exposing that insular culture at FBIHQ, she was attempting to meet her obligations to higher authorities as both an administrator and a citizen. The troublesome clash between these two obligations generated a role conflict that led her to bypass normal channels. However, it was not simply a case of an administrator acting beyond her level of authority. She is obviously much smarter than that. That is why she stated that she was picking and choosing her words with great caution--because she knew that they would be parsed down to the syllable by not just her agency superiors, but by her ultimate critics, Congress, the media and the general public.

Ethical Issues
Administrators have a higher ethical responsibility to act in the public interest. That means, when the situation calls for it, he or she may be forced to exercise what Rohr refers to as "subordinate autonomy." He or she, having given an oath to serve the "cause above causes" (i.e. the Constitution and the Rule of Law), may choose whichever branch of government to which that obligation most applies. In this case, by checking the power of the administrative branch, Rowley was reasserting the accountability of the FBI to its legislative masters. Of course, one ought not exercise such autonomy arbitrarily. There are rules for bucking the system that help to justify such actions. The needs of the agent for professional integrity and standards of performance must exceed not only any obligation to immediate authority, but also his or her own ideological beliefs. Such actions should be driven by needs beyond the politics of the situation. Gutmann and Thompson outline a set of requisite conditions for disobedience. The administrator must:

1. Act publicly
2. Act nonviolently
3. Appeal to principles
4. Direct their challenge against a substantial injustice
5. Exhaust all normal channels of protest

If Rowley actions meet these conditions, her action to appeal to a higher cause can be judged as appropriate to the situation. Furthermore, these conditions frame the rationales for her choices given the role conflict she so obviously felt both as an agent in service to executive principals and as a servant of the public interest.

Rational Alternatives

1. Do nothing: Perpetuating the status quo appears to have been considered and rejected as unethical.
2. Write an open letter to the ED of the FBI: This meets the condition to act publicly.
3. Write a closed letter to the ED of the FBI: If she considered this option, she most likely rejected it on the premise that she would leave herself open to unfettered retaliation.
4. Leak the information to the media: This is the least controllable option.
5. Work within the FBI system to effect positive change over time: This alternative has many obvious drawbacks.
   

Discussion
Number 1 does not appear to have been an acceptable alternative, given the emergent danger of terrorism to the public. Obviously, the obstruction of the Minneapolis office's investigation represented a significant injustice that could NOT be ignored by any objectively responsible person. Number 2 addresses this need for cultural change openly and does so specifically because all conventional channels had been exhausted by Rowley and her fellow administrators. Her multiple pleas had been squelched by the FBI hierarchy, leaving little alternative than to attempt an end run. Number 3 might work, but only to the degree that the ED is responsive to the public interest and committed to real change. Chances are good that since it does not meet the condition to act publicly, such an action could easily be ignored or, worse, referred through normal channels. That would have great potential for abuse directed toward Rowely for no general purpose other than retaliation. Number 4 also violates the public action condition and has the most potential for uncontrollable damage to the agency's reputation. Furthermore, it may only serve to increase insularity and lead only to further obstructionism. Finally, Number 5 makes sense only as a long-term strategy, not a short-term tactic. It is slow, unlikely and easily defeated. Furthermore, it assumes that Rowley would somehow make it into FBIHQ, a career path in which she may have little chance or intention of pursuing.

Recommendation
In my opinion, Rowley had little logical choice but to blow the whistle as she did (Number 2). Too much was riding on her actions to leave the situation to chance or to the whims of an administration that was notoriously adverse to bad publicity. Looking at reactions to past mistakes such as those made by FBIHQ administrators at Ruby Ridge and Waco, it is easy to see that there is little in the way of organizational tolerance for error, let alone forgiveness. That is why Rowley was taking a tremendous chance by hoping to ask for forgiveness instead of asking for permission. Her loyalty would no doubt be called into question, not only as an agent, but also as an American. The stakes were never higher than in the case of calling into question the performance of law enforcement in the immediate aftermath of 9/11. She stood to be demonized by reactionaries and loyalists alike. Only the political protections afforded to her by Congress stood in the way of her banishment or dismissal. That is why her status as Time Magazine's Person of the Year is well deserved. That kind of integrity and and commitment to high standards is becoming more uncommon in a politically-charged world.



JULY 12: READINGS
The Calculator

Description of Situation
It would not be a very comfortable jaunt to walk a mile in Kenneth Feinberg's shoes. The so-called "special master" in charge of the 9/11 Victim Compensation Fund (VCF) is obviously one tough S.O.B. Consider how, based on his reputation alone he was able to secure from the Congressional committee chair Senator Chuck Hegel a promise to advocate for the plum position on his behalf. That represents moxy. Moreover, it shows that he is not a administrator one can easily dismiss as overbearing and out of touch. He is obviously those things and a lot more. Otherwise, his tenure would be brief, given the nature of the VCF settlement terms. The questions he faces daily require him to somehow strike a balance between compensatory equity for victims' families and the stiff letter of the law. In the context of loss of affection, emotionally-charged claims and dire financial needs, it would take a "special" person indeed to measure up to those responsibilities. Like Machiavelli with whom he seems fascinated, he is an ethical realist, not afraid to bend the rules when slavish adherence to the law would be imprudent. Yet, he is not amoral in that he is very systematic in operation.

In particular, he faces daily a role conflict between his de jure vestment as a public trustee with regard to the VCF and his de facto role as a political delegate. Not only is he legally required to follow a predetermined set of formulae for compensation, Feinberg must also maintain accountability to the fund through assumption of his fiduciary responsibilities. He seems perfectly comfortable with these roles, however, even when their conflict seems irreconcilable. In order to reconcile them, he makes decisions appropriate to the level of authority he has been granted, which is considerable, but no more. He refuses to back down when an appeal to his authority as a fund trustee exceeds his fiduciary responsibilities as a delegate. Yet, he is also willing to make tough compromises now, that he is willing to try to justify later, based on the principle that it is better to ask for forgiveness than it is to ask for permission. He is obviously concerned with the means in that he is very much about the fairness of the calculations, but he is a lot more invested in the ends they lead to. In short, he acts with genuine ethical autonomy, which is a quality to be admired. If for no other reason, that also makes him a lightning rod for the federal response for these family members and the media. Of course, there are other reasons as well.

Ethical Issues
Democratic principles of distributive justice hold that whatever distribution that maximizes utility according to the will of the majority is the most desirable distribution. At the same time, it is possible to hold the tyranny of the majority at bey by assuring that policies fall within predefined limits of fairness. In other words, what is best in the collective sense should also be "fair" (if not quite equitable) at the level of implementation. Egalitarian goals, under this conception, may have to suffer. Gutmann and Thompson point out that the policy analyst approach, as demonstrated by Feinberg, proposes that with the right calculation of utility, it is perfectly legitimate to aggregate welfare using a common metric. Of course, there are a few flies in the ointment. Distribution is flawed. First, a perfectly utilitarian conception of justice is simply unworkable since the calculus required cannot completely disaggregate utility and redistribute goods with perfect fidelity. Therefore, compromises must be struck which form the basis of realpolitik. Second, there is a moral proverb that state that "all comparisons are odious." By that, it is meant at the level of individuals. By the same logic, the comparison of individual levels of utility is not only unpleasant, it may be ill advised, like comparing apples and oranges. In other words, what is good for Paul may be robbery to Peter. Maximizing utility may thereby have the unfortunate side effect of locking in inequities in favor of defensible rationales for redistribution. Third, there may be little basis for the quantification of human values, such as in this case, the economic value of a human life. Any such formulation inevitably leads to controversy since on one hand it ignores the basic problem of evaluability. In other words, the question is whether society should put a price on it. If the answer must be "yes," then how does one construct an objective formula that reconciles multiple metrics to arrive at that value. Can subjective concepts, such as loss of affection, be quantified and measured? There is a problem of incommesurability that must be answered. These criticisms beg the questions: If not this formula, which one? If not this metric, which one? If not compensation, what?

Rational Alternatives

1. Rely on the two primary metrics, income and age to calculate future earnings as a basis for evaluation. Only offer compensation to immediate family members to whom such losses accrue. Some subjective considerations enter in form of discretion with minor formula variances and the capitation of compensation amounts. This is the status quo.
2. Strictly rely on the two primary metrics, income and age to calculate future earnings as a basis for evaluation with no consideration of equity. Only offer compensation to immediate family members to whom such losses accrue. This and Number 1 are the only alternatives that would NOT require legislative changes to current law.
3. Offer across the board compensation amounts based on relationship to the victim. This calculation at least attempts to take into account the concept of loss of affection, even though that quantity is still an unknown.
4. Set compensation levels on a completely case by case basis, based on the best evidence and a general sense of fairness and "market value" according to median compensatory damages of civil law verdicts.
5. Offer no compensation whatsoever. It not within the purview of democratic governments to compensate civilians for such unfortunate losses for which society is not responsible. Let the victims fare for themselves in court if they must.

Discussion
Number 1 and 2 are attractive, simply from the reactive level in that this is the law as is. Exactly as intended, they do nothing to take into account anything other than the earning potential of the victim to the immediate family. However, lawmakers were prudent enough to grant the VCF special master a great deal of latitude with respect to implementation. Number 2 simply rejects that latitude and applies the letter of the law. The problem with that is the glaring inequity of giving the majority of the funds to those who need it least.
Furthermore, is one grieving spouse's loss really worth 16 times that of another? There ought to be some practical limits to objectivity in these calculations. Number 2 is simply too arbitrary` since focusing on income and age at the expense of everything else ignores egalitarian ideals that our particular form of democracy holds dear. Number 3 has the strength of offering compensation based on relationship to victim. That simplifies calculation, but does nothing to address loss of income for immediate family members who need and deserve a fair level of compensation most. Distributive justice suffers accordingly. Furthermore, should estranged siblings merit the same amount as loving ones? The actual level of the loss of affection would always be an unknown amount, further straining the notion of fairness. I would reject Number 3 on the basis that there can be no metric that is both valid and reliable for the concept of that loss.

Number 4 has the merit of simplicity: just put the power of the purse strings in the hands of the special master and be done with it. The obvious weakness is that this alternative invests too much power in the subjective judgment of one person. The strength of the policy analyst approach is that there is at least some pretense of objectivity, some rationale to justify distribution of benefits. If accountability is to be maintained, there must be some form of objectivity OTHER than a simple appeal to precedent. Finally, Number 5 seems rather callous at first. After all, these are victims of extraordinary circumstance and the circumstances of their demise raises them to the level of heroes since they died to varying degrees in performance of their proper duties as Americans. However, consider the actual cost of the current compensation plan to these victims' families. The whole point of VCF is to deflect class action litigation from private industry and government. That is all the more reason that these families should reject the benefit since it does not take into its calculations the consumption cost of losing the right to sue or settle for a fair amount those who were in positions of responsibility to prevent their loved one's death. Congress may be trying to foist tort reform on these families because their losses endanger the status quo of the power elite: entrenched economic interests, incumbent war chests and inert government agencies.

Recommendation
In my opinion, the only rational choice for these families is to reject blood money (Number 5). Therefore, let the chips fall where they may. Congress should have never offered in the first place. Did they offer compensation to Oklahoma City Bombing victims' families? What about the thousands of families who have lost sons and daughters to the preemptive War on Terror? Don't they deserve just compensation for their losses? No. It just seems a little too convenient for Congress to try to buy off these loved ones at bargain basement prices. That would be because they know who is to blame beside Osama bin Laden. In light of the offer, they are not so much victims of terror as they are victims of incompetence and greed.

JULY 12: READINGS
Defunding Organ Transplants in Arizona

Description of Situation
Perhaps it is a residue of the frontier spirit that has enabled Arizonans to so boldly face first questions, as Pamela Varley points out, such as "government or free enterprise" in relation to healthcare issues and consistently side with free enterprise as the solution to their problems. After all, federal Medicaid funds were plentiful and they could simply tap into an existing source to relieve the rapidly growing burden of indigent healthcare on many Arizona counties' budgets. Then they need not face the Augean task of implementing such a complex state-based initiative and make difficult funding decisions such whether or or not to pay for certain organ transplants, such as in the case of the death of Dianna Brown. The price for independence is responsibility, a fact which seems to have eluded the Arizona state legislature. Had they simply opted into the Medicaid system, such decisions would have been made for them. They could rightly assume the veil of ignorance. Instead, they chose to take a position against the POTENTIAL for fraud and abuse, because it is a well-known fact that state-funded initiatives are always free from fraud and abuse compared to federally-funded ones. Not.

Seriously, there are obvious opportunity costs for going it alone as opposed to taking part in a federal program. One of those costs is a higher level of accountability to the public. The need to serve the public interest is absolute in the decision to forgo other social goods in favor of a healthcare initiative for the poor. That money might be better spent on pre-natal care for expectant mothers in the battle against low birth weight. Instead, AHCCCS was given budgetary priority by lawmakers over other potential uses for it funding. Lawmakers are accordingly accountable for that decision. Goodsell would point to the need for responsiveness that was the genesis of the AHCCCS policy--serving the delegate function to arrive at political consensus. However, in this case, three values in particular will help evaluate both the process and substance of the transplant policy:

1. Concern for logic
2. Concern for effects
3. Agenda awareness

Ethical Issues
First and foremost, in order for this policy to pass muster, the transplant policy must make sense. Is it logical for a state-funded medical safety-net for the poorest of the poor to pay for these incredibly expensive and often risky procedures? Like Leonard Kirschner's "women and children first" Titanic concept of Medicine suggests, an administrator has to set some priorities and stick to them, especially since resources (revenues) are limited. Otherwise, the notch group might well go down with the ship! The opportunity costs of supporting transplants are quite high on a per case basis. Therefore, the concept of logic dictates that the costs be justifiable vis a vis alternative uses for the resources. If they cannot be justified economically, then such a policy cannot be justified logically speaking. Irrational expenditures, of course, are all too common. That does not mean that they are advisable in a practical sense.

As it turns out, some transplants make logical sense while others do not. The concern for effects requires that lawmakers exercise prudence in their decisions or else face unexpected and unacceptable results. Certainly the Dianna Brown case falls squarely into that category of results. No public interest value is served by her death in particular. Any way one looks at that, it is crying shame. However, in aggregate the trade off may still have been worth it, depending who benefits as a result. For example, if the net effect of forgoing certain categories of transplants to the state is a 5 percent reduction in low birth rates, it becomes more difficult to argue in favor of transplants. That is bad news for the Dianna Browns of the world, but resources are limited and lines have to be drawn somewhere. Or do they?

There is, of course, the notion of having your cake and eating it too. In other words, why can't Arizonans have both? The answer, obviously, is that they can. It is simply a matter of increasing awareness of the agenda and transforming public priorities to put more emphasis on meeting the needs of unrepresented segments of society (i.e. the notch group). That not only legitimizes the process, but leads toward a more equitable distribution of social goods that helps reduce economic healthcare disparities. Thus, lawmakers have alternatives to a false dichotomy between transplants and coverage.

Rational Alternatives

1. Follow AHCCCS transplant policy recommendations to the letter; offer no coverage for heart transplants
2. Take AHCCCS recommendations into account but field a modified policy based on best evidence by offering coverage for heart transplants (status quo)
3. Sidestep AHCCCS and bow to public pressure in favor of most medically-necessary types of transplants to the disadvantage of other more cost-effective forms of coverage
4. Buy into the federal Medicaid program, using AHCCCS to transition beneficiaries
5. Refuse to reauthorize AHCCCS and get the taxpayers out of the public healthcare business
6. Commit to expanding poor families' access to affordable healthcare by expanding AHCCCS notch group coverage AND cover most medically-necessary types of transplants

Discussion
Number 1 makes sense from a neutral competence point of view. Let the experts decide, however, and many more people will apparently die, increasing anger against AHCCCS and leading to political retaliation. Number 2 represented an attempt by legislators to avoid the consequences of Number 1 while not sidestepping the advice of key informants about AHCCCS. It was a logical compromise from a budgetary standpoint. However, the outcome of Number 2 was failure to avoid blame by ignoring the glaring potential for negative effects on the beneficiaries. Number 3 is simply illogical. It makes little sense to cave into political pressure and ignore sound medical advice. Moreover, the cost to benefit ratio of such coverage would be become a serious detriment to the AHCCCS mission since funding is not particularly elastic.

Number 4 raises the capitation rate for Medicaid reimbursement and might make sense budgetarily, that is until notch group growth becomes a serious issue as in most other states. Prudence dictates that lawmakers look ahead to avoid such budget crunches by being proactive. Furthermore, perverse incentives will always plague expansions that is not timed well or fiscally controlled. Then it is "good-bye, safety net!" Once the state buys into Medicaid, moreover, it would be exceedingly difficult and costly to get out when it needed to. Thus, some might just recommend Number 5, even though Arizona might already be past the point of no return when the effects are taken into account. One could make a logical case for it, but I tend to doubt the numbers would add up. Furthermore, the effects for the notch group could be devastating, making legislators into villains in the media, regardless of all pretense of good stewardship. The tyranny of the majority must be checked by a sense of trusteeship. That just leaves Number 6.

Recommendation
The primary drawback of Number 6 is the potential for perverse incentives: expanding services for the poor acts like a magnet to draw them into the economy. That may be a risk that can be controlled through the use of waiting periods and nominal co-payments. Such tools can control entry and use of AHCCCS coverage, while helping to generate some extra income to support it. There are concerns, of course, for the logic of such proposals and their realistic potential for negative effects on beneficiaries. Those might well be offset sufficiently by greatly expanded access and coverage options. A careful study of these proposals is in order. Besides due caution, such expansion requires more political will than Arizonans may be able to muster. It will require true leadership on the part of legislators, the governor and program administrators alike. Ultimately, the reality is that Arizona taxpayers will pay either now or later for the medical expenses that the poorest among them cannot possibly afford. They can make the hard choice to do the right thing not only from a fiscal perspective, but from a moral one as well.