JULY 19: READINGS

AA at the Michigan Law School


Description of Situation
The plaintiff in Grutter v. Bollinger claimed reverse discrimination on the part of the University of Michigan, based on her being waitlisted in preference to at least three minority applicants with parity of qualifications. It does seem like a case of sour grapes. Jennifer Grutter no doubt had other opportunities open to her even after being waitlisted and chose, instead, to make a federal case out of her academic misfortune of having applied to a school that was committed to a fairly unobtrusive flavor of affirmative action. After all, there were no racial quotas as in Bakke that violated the principle of nondiscrimination. In fact, the Michigan AA program was structured according the findings set down in Bakke. The Michigan admission policies, for example, were narrowly tailored to serve academic and not societal outcomes (though those are also stated as a goal of the policy.) Furthermore, it is essential to point out that the Michigan policy was not intended to redress historical wrongs, but rather to serve the University's urgent need for diversity in admissions that would create a "critical mass" of black and hispanic students so as to reduce tokenism. However, the question is whether the use of race as a contributing factor, a plus as in Justice Powell's decision and not a deciding factor per se, is still discriminatory on some level. Stare decisis would seem to have foreclosed that issue long before Grutter. The question, then, is why bring such a case if it had little merit or chance of success? The answer would seem to be that the case was latched onto by the conservative forces as fodder for the battle against affirmative action. A test case of this kind would naturally generate intense media interest. This might help whip up the conservative base and bolster efforts to legislate affirmative action out of existence at the state level where it is most vulnerable.

Ethical Issues
The plaintiff and the amicus tried to frame the dispute as a case of individual civil rights being trampled by an outdated discriminatory practice. The idea implied is that government cannot reconcile the somewhat divergent policies of nondiscrimination and affirmative action if the ultimate goal is a racially blind society. Nondiscrimination by government funded institutions (and other spheres of society) entails that race should never influence opportunities in education, employment and so on. This is a first principle in a just and equitable society. Affirmative action, on the other hand, requires these same institutions take steps to ensure that protected minority rights are not abridged. These policies are the law of the land and have been for decades. Few would deny their past utility and the that countless benefits have accrued to society since their adoption. Bakke clarified the meaning of affirmative action in relation to nondiscrimination--it did not outlaw the influence of race in decision making. As Sandra Day O'Conner so rightly points out, context matters when it comes to the influence of race in certain spheres, such as in higher education admissions. Therefore, the consideration of race is not "equally objectionable" in that context. Thus, Powell's prudent construction of strict scrutiny allows for minimally intrusive influence of race in cases where compelling government interests exist. Strict scrutiny offered a perfectly proportional response to the apparent inconsistency between the letter and the implementation of the law. This rational, utilitarian approach to racial injustice, however, is now under attack using a strict absolutist interpretation of Titles VI and VII and it just may succeed, given the unrelenting assault by the right on the judiciary. The question are: Is Michigan's admission policy proportional to the problem? Are its effects and duration sufficiently narrow for the context? If nondiscrimination is the moral minimum, is affirmative action (as implemented) a logicaland equitable response? If not, what are the options for the University?


Rational Alternatives

1. When faced with the challenge of Grutter, maintain the status quo policy, hoping to win or to reach a settlement
2. Admit the plaintiff, abandon race as a plus and stick to race neutral qualifications, along with geographical, economic or political characteristicsthat would tend to enhance diversity
3. Consider race only in cases of economic and social disadvantages
4. Phase out race as a plus over a seven-year period, offer a civil rights track, and hire minority faculty to help attract minority law students
5. Reduce weight of academic standards for admission, such as undergrad GPA and LSAT scores, for ALL applicants
6. Convert to race neutral qualifications and provide tutoring and remediation assistance for minority applicants to help improve their LSAT scores and better prepare the applicants for law school

Discussion
Number 1 is attractive, simply from the perspective that the program works, why fix it? Furthermore, it is in keeping with the letter and spirit of the law as it is now understood. That seems appropos for a program dedicated to the study of law. However, without policy changes, further challenges may be brought by those applicants whom the policy impacts. Furthermore, the slippery slope argument suggests that there ought to be some kind of exit strategy for the future. Number 2 is attractive since it would probably not impact applicants with particularly deep pockets. However, that would be an immoral rationale. Minority applicants would be impacted instead. Still, there is something to be said for race neutral qualifications--they can perform much of the same function when given the proper weight and combined with recruitment efforts. Number 3 simply burdens poor nonminority applicants a little too much. They deserve an advantage in consideration as well. Number 4 seems measured and proportional. However, it really does little to lead to the goal of a critical mass if the pool of qualified minority candidates is already weak. Number 5 seems out of place. However, for whatever reasons, the fact is that black and hispanic applicants generally have lower GPAs and LSATs than their white counterparts. Thus, lowering standards may tend to lead to more successful minority applications by increasing their proportion. Of course, the faculty and administration would likely bristle at such a suggestion. Very little in academia do you hear calls for reducing standards. That just leaves Number 6.

Recommendation
Number 6 makes sense for a number of good reasons. First, helping minority applicants prepare themselves and improve their scores does not create a separate admission track for these students, nor does it insulate them from competition. Second, it is compatible with the existing policy, meaning it can help to bridge the program to race neutral qualifications in the future. Third, it is simply not enough to say that race is no longer a consideration. The result of that change by itself would be to lock in economic and social inequalities that have existed for many years. Wishing that society is race blind does not make it so. Only affirmative action toward that goal will make it so. Unless the arrow of social progress has been totally turned back by the conservative tide, the pool of qualified minority candidates will eventually reach its potential in our society. In the meantime, institutions of higher learning have an obligation to maintain high standards and give qualified candidates a hand up so as to increase their numbers in law schools and in the legal profession. These role models will inspire black and hispanic students who will increase the qualified pool of minority candidates. Who knows what might happen in 25 years?

JOURNAL: WEEK SIX

The Warrior's Code
War is an ugly, nasty, hellish thing. It involves extreme forms of behavior that under most any other circumstance would be considered unconscionable. Yet, perfectly rational, moral, upstanding individuals are frequently engaged in it and are lauded for their sacrifices to the cause. How can this be so? After all, war involves all manner of barbarism, destruction and deception. No matter what the end, its means are, by definition, immoral. No one can avoid the basic fact that war involves planning, assaulting and killing other human beings.

Yet, somehow, it is not murder. It has been suggested that there is an ethical transition that occurs in battle, one that permits soldiers to follow orders (even immoral ones) and to kill the enemy with impunity, in short to do what the situation absolutely requires. Some soldiers and commentators have even described it as a form of madness that takes one out of the box of conventional morals and ethical standards of behavior and into a moral no man's zone. In that space, rationality is redirected to irrational purposes--to mayhem and the contemplation of it. It is a directed form of entropy, directed by communal purposes and driven by a shared-sense of tribalism, commraderie and hierarchy. Those purposes transform the actions of soldiers into acts of patriotism. As individual acts, they would be considered immoral. Taken together as part of a collective cause in the name of whatever, they transcend their essence to become socially acceptable, even heroic. The soldiers act in proxy to a larger social order that would be impotent without their agentic shift, sacrificing their own individuality for the sake of the collective. It is violence by proxy.

So how does one ascertain when a soldier crosses that line which divides authorized violence by proxy from unauthorized individual mayhem? This is often one of the toughest distinctions in battle for officers and soldiers to recognize and maintain. After all, many such acts are highly situational and often ambiguous in terms of criminal intent. Accordingly, there are rules of engagement and standards of behavior to which soldiers must adhere--a method to the madness if you will. This is the so-called Code of War. Soldiers are steeped in it as a kind of internal control (the last resort is self-control.) External controls include such means as orders, regulations, laws and treaty provisions, such as the Geneva Conventions. Where these fail the test of morality, the soldier's own conscience must be his or her guide to evaluating situations to determine if these external controls meet personal ethical standards for civilized behavior. If they do, the action is judged to be worthwhile and appropriate to the situation.

What happens, however, when the soldier faces an immoral order such as to fire on his own men (as in Paths of Glory) or to use torture, which is strictly prohibited by other forms of external control? Often, war puts soldiers into situations where they must choose between the lesser of two evils. When internal and external forms of control conflict, soldiers face some of the highest stake ethical dilemmas possible. There are three possible combinations that comprise such
dilemmas:

1. Internal Controls vs. Internal Controls
2. Internal Controls vs. External Controls
3. External Controls vs. External Controls

Internal vs. Internal
These type of conflict involves strong ambivalence on the part of the soldier. On the one hand, a soldier feel the need to protect his compatriots. They are his friends of whom he is naturally protective. He is suddenly faced with the need to return fire. On the other hand,to do so he must fire indiscriminately into an occupied village, knowing full-well that noncombatants are present. That sort of conflict between loyalty and aversion to risk of killing noncombatants is common in war. Such decisions may be made in a flash of awareness, after a long period of anticipation and self-reflection. When personal codes of conduct conflict suddenly, the soldier must often act first and judge later. Thereafter, they may spend a lifetime attempting to reconcile their actions (or failure to act) with their own expectations. This leaves what has been described as an "ethical hangover" for which there is no easy bromide. Expectations and personal views of events may also clash between soldiers so that conflict erupts over ethical choices made on the spur of the moment or regarding a pattern of behavior. This type of internal vs. internal conflict is particularly prevalent between equals, but may also occur between subordinate and superior when it is on a personal level.

Internal vs. External
These type of conflict is most common between subordinates and superiors. When confronted with an immoral order, the soldier must find some way to follow her own moral compass, reject the order and risk reprisal. Along these lines, the soldier may seek a compromise with the superior. The other two alternatives are to either to find some way to follow the order that mitigates its offensiveness or to follow the order exactly as given and then find some way to personally reconcile her action. Through agentic shift (deflecting blame), cognitive dissonance (buying in) or simply through some strategy of avoidance, the soldier must find some way to process the choice and accept the consequences. No matter what the choice, when faced with such a dilemma (trilemma?) the stress can be debilitating. Another internal vs. external choice can arise when soldiers face their obligation to follow laws, regulations or treaty terms in ways that do not conflict with their personal views of the situation. This usually requires varying degrees of professional detachment, especially when the external controls are immoral, unrealistic or vague. The Code of War states unequivocally that soldiers are to not target noncombatants when possible and to take steps to minimize noncombatant casualties. Yet, our soldiers routinely design and maintain arsenals that target civilian areas and even whole populations with destruction. When such activities become routine, that is prima facie evidence that the moral high ground has been lost and that the Code is no longer relevant. At any rate, it seems impossible to reconcile such conflicts without a healthy dose of compromise.

External vs. External
Sometimes competing orders from superiors may lead to a conflict of obligations for soldiers. Then the choice becomes to opt in: to choose whichever order is most compatible with or least offensive to the soldier's point of view. Sometimes, a false dichotomy develops in that the soldier sees no other possible alternatives than the two conflicting orders. In the heat of battle, the choices may become so unattractive that the only rational choice is to choose to opt out in some fashion, whether through defiance, bargaining, appeal to authority or evasion. Another scenario develops when the choice is between an immoral order and the some other external control such as the law. Then the soldier has an obligation to choose the law over the order, even if that ensures reprisals. However, peer pressure can enter into the situation, as can other forms of enticement (extortion, threats, bribery and so on). Finally, there are plenty of examples where laws, regulations or other de jure controls conflict with one another. A sailor by treaty must not violate the sovereignty of a vessel under a noncombatant foreign flag, for example, but he must also board foreign vessels in cases where there is reasonable cause to suspect the vessel actually belongs to enemy powers. Sometimes, when there is little cause and the stakes are high, the sailor may choose to board the vessel in spite of the potential for negative consequences. Then he must exert the authority granted to him by choosing one control over another. Taking that example one step further, seizure or destruction of the suspected vessel may rise to the level of piracy, even though the Code of War compelled the action.

Prescription
Understanding the nature of the soldier's dilemma--how to be moral in an amoral situation--may very well require the courage to take a stand against ones peers or superiors. This is, obviously, not an easy thing to do. It entails a moral imagination, decisiveness, integrity, and, most of all, commitment to higher cause. Obviously, there is no small amount of risk implied in such actions. Being able to rise above the limitations of dichotomous thinking (right versus wrong, bad versus worse) requires being able to prioritize values, imagine alternatives and consider consequences--all leading to being able to exercise moral autonomy. A consistent pattern of such decision making leads to integrity and to an even stronger sense of values on which to base ethical choices. These ultimately contribute to more personal responsibility for one's actions when dilemmas occur. Making decisions in keeping with the requirements of the situation means using the appropriate level of decisiveness. Integrity and values provide a place to stand when all else shifts under one's feet. Finally, all would be willful were there no commitment, some greater reason to take a risk in the first place. Ultimately, we cannot exert control over others when we are not in control of ourselves. The value of internal controls, when they are properly instilled and reinforced, is not lost on the battlefield. It is there, right when soldiers need it most.

JOURNAL: WEEK FIVE

Taking the Battle to Congress
In 2004 the Bush Administration came under increasing scrutiny for its seeming lack of concern for disabled veterans of foreign wars. Rather than, in Lincoln's words, taking care of "him who shall have borne the battle," (the motto of the Department of Veterans Affairs) the Bush record is one of lip service, program cuts and Machiavellian policy manipulation, leading to thousands of vets being cut out of a system originally designed to honor their service with service. Many view these benefits as having already been earned, needing no justification for budgetary or political reasons. The President himself seems to take every opportunity to pay tribute to them in public declarations of the inestimable value of their service to the nation. However, Knight Ridder journalists began to report this record after Knight Ridder sued the VA on grounds of FOIA violations, forcing the VA to release information on disability payments for vets that had been conveniently swept under the carpet for decades. The VA's own research revealed that as many as 572,000 veterans were due compensation for physical and psychological injuries sustained in battle. That would translate into over $4.5 billion in direct cash benefits that have already been promised to each and every vet who survived his or her injuries. Instead, those funds have never even been set aside due to the lack of vet enrollment in the program. The VFW Magazine reported in 2002 that the Bush Administration actually pre-emptively ordered the VA to cease its outreach efforts aimed at increasing vet enrollment in health care services.

The Bush Administration, of course, is not the only one to blame for a record of shame that goes back to the Johnson Administration. However, under Bush's watch the problem seems a bit more onerous for two key reasons. First, the "War" on Terror" has put unprecedented strain on the federal budget in general and on the VA budget in particular. Since 9/11, expenditures on various military expeditions has totaled over $400 billion and counting. In 2005, the VA ended a three-year budget cycle which means that the last budget was adopted well before the onset of the Iraqi Conflict. The VA predicted a three fold increase over original estimates for vets seeking medical services in 2005. Combined with other shortfalls due to unplanned demand, the VA's budget ran over a $1 billion into the red. The Senate was forced to scramble to supplement the VA's budget before it defaulted.

All of this means that there has been precious little funds available to devote to comprehensive outreach efforts that would bring program enrollment up. Even though it cannot order vets to file for claims that they may be due, the VA can at least reduce the information asymmetry that is contibuting to the problem. Furthermore, the agency can devote its efforts to reducing the red tape that has frustrated perfectly legitimate vet claims for years. Of course if there are no funds to devote to compensation payments, outreach is simply moot. Bush's 2005 proposal fell $2.6 billion short of what the Independent Budget recommends, meaning that vets are being short-changed yet again.

Second, by its own rhetoric, the administration has hung itself by failing to live up the expectations of so many vets and their families that, frankly, have never been able to depend on promises that have been consistently broken or underfunded. Now vets are facing new burdens such as being asked to pay for their own health insurance as though their blood were not already payment enough. To the conservative VFW and other vet groups, the appearance is that Bush is attempting to balance the budget on the backs of these poor vets and their families. Furthermore, the shortfalls are leading to longer rolls and wait times for vets, some of whom already have to wait years to get into the VA medical system. Many vets view this kind of policy manipulation as disgraceful and a slap in the face of all who have worn the uniform.

Moreover, how is it possible to justify such brazen disparity between an administrator's words and his actions? Obviously, I'm no big fan of this administration, but these are opinions expressed by ex-military personnel, a demographic Bush can usually count on. It is as though the President sees no conflict in between his fawning praise of military service as a citizen and his role in perpetuating vet miseries as an administrator. Does he view the role of the Presidency as a figurehead--only with really cool perks? As Commander in Chief, he does not seem to take his either objective or subjective responsibilities to take care of his own soldiers very seriously (or much else for that matter). I will give him the benefit of the doubt for a moment. It is entirely possible that in delegating authority to administrators to form their own budget requests and make increasingly complex decisions on his behalf, Bush simply does not recognize the nature of the disparity that quite a few vets now perceive as a leitmotif of his leadership. Furthermore, Bush has surrounded himself with advisers who may downplay the poor quality of the administration's own actions. Bush himself is reputed to stifle internal criticism in any form, though there are recent signs of chastening in his second term. The point is that he is most vulnerable for whatever it is that he loves (or professes to anyway.) If negligence is the issue, he and his administration are nevertheless accountable. There are lives being affected and they should simply have known better.

Furthermore, it is certainly not in the public interest under any condition to ignore these issues or downplay their importance. As it stands, the quality of life for many of these vets is simply unacceptable, meaning the blame for this negligence (or stinginess) will attach to his presidency. From a PR perspective Bush needs to take this battle to Congress (where he will find many an ally). No matter what the reason, it is ethically and morally wrong to perpetuate chronic ingratitude through bad policy. The welfare of this minority group must be protected if we stand for anything at all as a freedom-loving nation. Just as our vets answered the call of the majority, he must answer the calls of this minority as well. No one, let alone the President if he is worth his salt, can take this responsibility lightly. It just makes good sense to take good care of your own. That garners loyalty and respect from not just vets, but their families and all who are concerned about their plight.

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.

READINGS: JULY 5
The Decision to Drop the Bomb


Description of Situation
It is an easy thing to sit in judgment of historical events. With the perspective of time, including years of research, discussion, reflection, study and complete disclosure of official records, historians and evaluators have the luxury to parse decisions literally until death. Such is the case with the decision to drop the atomic bombs on Hiroshima and Nagasaki in the summer of 1945. From the comfort of 60 years hence, one can easily dismiss the logic of President Truman and his advisers as faulty. Other alternatives were available besides the bomb as it was used. Furthermore, nascent Cold War geopolitical politics may well have influenced their thinking unduly. Other sources of prejudice may have ranged from racial hatred attributable to the sneak attack at Pearl Harbor and to government propaganda. Take into account, however, the actual uncertainties of the situation that Truman faced and the decision could not have been an easy one. The decision is typically defined as a dichotomy:

1. Invade Kyushu in one fell swoop and face at least 30,000 American casualties (with a minimum of 6,000 fatalities) and press for Japanese surrender. These estimates have always been in dispute.
2. Drop the bombs and press for unconditional surrender. The total estimated losses of life for these two military/industrial targets was unknown at the time. It was reckoned that, given the proximity of large numbers of civilian dwellings, the number of deaths would be great (100,000 actual). The point is that there was NO utilitarian basis for comparison with weapons untested in the field of battle.

Note that unconditional surrender was the public face of Allied demands for peace. There was actually wiggle room built into the Allied position to allow for protection of Hirohito's throne. This was not discussed publically, but it was one of the carrots in the Allied arsenal to lure the Japanese into submission. Japan's negotiators were getting mixed signals about this key stipulation that led to their fatal intransigence.

Ethical Issues
The ethical issues of this famous decision are rather complex and go way beyond summation in two pages. Suffice it to say, however, that the dichotomy that Truman and the Allies presented was not representative of the logical range of alternatives. Truman was under a great deal of pressure in that:

1. Objectively speaking, the "buck" stopped with him. As Commander in Chief, he was responsible for the successful conduct and the pressing resolution of the conflict with Japan. This meant such things as strengthening the post-war Allied hand, chastening the Japanese government appropriately and, especially, minimizing American casualties for which he was politically answerable.
2. Subjectively speaking, Truman felt compelled to minimize the loss of human life, especially America's sons and daughters in harm's way. Japan's still commanded a force of approximately 2 million at home. American estimates of Japanese casualties of the Kyushu rout indicated that their losses would have been staggering, including a large number of civilian deaths.

Detailed plans for the invasion were ready to roll well prior to Potsdam and the successful test at Alamogordo. The bomb seems to have become a deux ex machina for Allied planners that seemed to solve all problems, including the high rate of Allied air campaign losses (2 sorties versus hundreds). There was no mention of the Manhattan Project in any of the American plans to end the war prior to that time. This came about despite the fact that there were four sound alternative strategies.

Rational Alternatives

1. Wait for the Soviet Union to declare war on Japan and attack it's northern flank. Completely surrounded and isolated, Japan would have surrendered eventually.
2. Continue the already-successful strategy of naval blockade and air campaign pressure in some form. The Japanese were already making overtures for a negotiated settlement in the face of demands for unconditional surrender.
3. Withdraw all forces multilaterally and negotiate a settlement. Expansionist Japanese hawks would no doubt prefer this alternative, especially if they were not required to withdraw from their territorial gains as part of the agreement to cease hostilities.
4. Demonstrate the power of the atomic weapons on unpopulated areas or totally non-civilian targets and sue for peace.

Discussion
Many American planners and negotiators had serious reservations about the strategic use of atomic weapons. Their use as planned was an obvious and troubling departure from the Code of War concept of minimizing non-combatant deaths. From a strictly utilitarian perspective, however, there was no mathematical basis for mortality/casualty comparisons between the use of atomics and the other alternatives. In any case, deaths and casualties would be unacceptably high by modern standards. Furthermore, the Japanese war machine had to be stopped and fully dismantled to avoid future conflicts. In the context of this ongoing war of attrition, it now seems that there was no decent alternative which would not also weaken the Allied gambit for unconditional surrender and potentially lead to even more deaths in the long run. Besides, how can one morally rationalize the creation of weapons powerful enough to decimate all life in the future? The weapons progenitors were fully aware of this probability but chose to proceed based on the high-minded notion that unleashing of atomic energy would morally require an eventual end to war in a war-weary world. This, of course, was the biggest lie of all.

After all, by that standard, one can take an absolutist position to outlaw their use EVER for non-miliary targets, based simply on the inherent immorality of such use. No such means, using non-combatant casualties as a bargaining chip, could ever be rationally justified under the Code of War. Having ruled out rational explanations for the ultimate decision, that leaves only irrational ones. In this case, trumped-up fear, sinister geopolitics and residual racism lead to a suboptimal result. That is by no means to suggest that it was an easy decision.

Recommendation
If one rules out the use of atomic weapons on a moral basis with respect to non-military targets in keeping with the old Code of War, some measure of integrity could have been maintained. By opening Oppenheimer's bottle, the genie of mutually-assured destruction was unleashed upon the world. This is morally indefensible from any perspective since now every man, women and child in America is now in the crosshairs as a result. This was not an issue of black and white, however, since limited strategic use of the weapons could have been justified under existing standards of conduct in war.

Awful as they may be, atomic weapons could have been used on strictly military or unpopulated targets to demonstrate their power and efficiency. This, combined with the Soviet Union's entry into the conflict, would have certainly been enough, especially with assurances from the Allies for the continuity of the monarchy in an occupied Japan. After all, these were the primary term to which the Allies actually assented. Their public insistence on unconditionality was not only unrealistic and imprudent in the long run, it also backfired horribly when it came time reappraise the situation and redefine what it means to be a superpower.



JULY 5: READINGS
Why Attack Iraq?


Description of Situation
In the rush of current events, perspective is not easy to maintain. After all, America and the so-called "Coalition of the Willing" is still in prosecution of its police action cum war in Iraq. Nevertheless, observers of events have an obligation morally to parse this situation even in the current absence of complete information, quite unlike in the case of Truman's decision to use atomic weapons on Japan. The alternative to simply accept the public accounts of the administration and their justifications is simply not tenable. Too much is at stake in terms of the lives already lost and the human suffering that has resulted to deny the reality of the situation and bury one's head in the patriotic sand as some have recommended. Reality-based decision making requires facts. These are a few of the key facts as we know them about the decision to attack Iraq:

1. Prior to the conflict in Iraq, it is now reported that it was a foregone conclusion within the administration that the President would order the invasion. Moreover, no such large-scale contingencies were seriously anticipated for Afghanistan where Osama bin Laden and many of his operatives were hiding under the protection of the Taliban government.
2. Troop estimates from commanders in the field were irresponsibly downplayed by Secretary Rumsfeld and the hawkish administration neo-conservatives, leading to the loss of control in the vacuum created by coalition forces. This planning misstep contributed to anarchy, looting, loss of security containment and lead directly to the rise of the Iraqi insurgency.
3. The cost of military operations was grossly underestimated by a factor of 400 and counting. Even slightly-less unrealistic dissenters from these estimates were maginalized or forced out of the decision making loop. Nearly a billion tax dollars a day has been spent on the effort.
4. The idea that our troops would be greeted with flowers as liberators was, at best, hopelessly optimistic given the divisive ethnic nature of the Iraqi polity. At worst, it was a total sham to pull the wool over the majority's eyes which was being groomed from 9-11 for war. By most ethical standards, the administration appears to range from completely irresponsible for their actions to totally corrupt.
5. A consistent campaign of bad assumptions, disinformation and outright lies was used to magnify the Hussein's obsession with his attainment, use and especially his export of Weapons of Mass Destruction (WMDs) to terror groups. The evidence presented by administration officials was weak and many now either admit it or at least equivocate about it.
6. The effort to connect Hussein's government to Al Qaeda, was at best, weak prior to hostilities. That was because whatever connections there were were assumed to be tenuous. However, in the withering vacuum of no WMDs found, the administration changed tactics. From calling insurgents "terrorist combatants" to the targeting of Al Qaeda in Iraq leader Abu Musab al-Zarqawi, the point has been to distract the public.

Ethical Issues
Certainly, not many Americans would dispute the need to contain the former Iraqi government and its misguided and often aggressive efforts. Certainly Hussein had earned his government's crippling isolation, along with the world's many admonishments and sanctions. This was an evil man by any moral standard. Few would mourn his deposition. However, this judgment is beyond the point. The tendency is to confuse the nobility of the cause with its necessity. Certainly, since the progress of the war has degraded, the administration would have us believe more in the nobility part, especially since the necessity part is a little worse for the wear. Should America have sat on its hands and done nothing to end this horrible regime? Certainly not.

The status quo was unacceptably risky in the long run as Hussein consolidated his power and gained military strength. However, did the status quo actually meet the standard for the concept of the "preemptive" war? The Bush Administration and Congress went out of their way to legally justify their actions as a unilateral response to the many UN Security Council resolutions in favor of reprisals against Iraq. Never mind that the UN charter specifically prohibits such unilateral action. Since when has this administration cared what the rest of the world thought?

Furthermore, no evidence of "imminent threat" has ever been presented that would justify these actions. If we are to believe an appeal for action based on the idea of self-defense, does that not imply imminence? Since no demonstration of both Iraq's ability and intention to attack the United States and its forces has been offered, there can be no rational justification for preemptive war.

Rational Alternatives

1. Continue the successful policy of containment against Saddam Hussein. Expanded sanctions and world cooperation could only tend to serve a positive outcome in the long run.
2. Gain the cooperation of Iraq's neighbors and enforce a trade embargo to further isolate the former Iraqi government. This has the unfortunate result of killing many innocent Iraqis through attrition.
3. Provide economic, intelligence and limited military support toward a coup d'etat and or civil war. This strategy worked very effectively for America in Afghanistan.
4. Encourage separatist movements in areas such as the Kurdish north and the Shiite south where the Hussein government's grasp on power is weakest.
5. Work through the UN Charter to create a multinational force to menace the Hussein government into capitulation. The United States had used this strategy successfully in the 1991 Gulf War. By that virtue, it still had teeth.

Discussion
The Bush Administration has a Constitutional obligation to defend the American people and their interests. All of the alternatives offered above do so to some logical degree. The responses all have humanitarian repercussions, along with serious implications for our use of them. Some are more of a shotgun approach than others. Numbers 1 and 2, for example, would mostly serve to punish civilian populations. That makes their moral justification more problematic, since more focused alternatives are available. Utility would require 1 and 2 be given a lower priority. Encouraging civil war based on ethnic divisions would tend to be highly destabilizing in the long run and lead to even more bloodshed as regions vie for control of disputed areas. Supporting a coup d'etat, might be a relatively bloodless alternative, by comparison to the others, but it still involves much potential for serious ethical breaches and a slippery slope ala Vietnam. Alterative 5 may be the weakest position to assume tactically due to its comparative complexity and slowness. All of these alternatives, though admittedly imperfect, are more rational than preemptive war where no imminent threat exists.

Recommendation
The administrative branch does not operate strictly on the basis of ethicality. If it did, we would not be at war right now. Such considerations as practicality, legality, constitutionality and public mandate go into every decision. Therefore, let us examine these aspects for the most ethically-justifiable alterative, Number 5.

Relying on the UN to enforce its own standards for moral conduct may not be totally practical. Many practical compromises would have to be made toward unifying world opinion. These would be less objectionable to the moral compromises the American people have been asked to bear by this administration. Legally, the government would be on solid ground since it would have an appeal to the rule of law and the UN Charter. Constitutionally, the administration would have the perfect right to conduct foreign policy as it sees fit, short of the absolute boundary of declaring war on another nation. Finally, would the administration have to work so hard to gain public support were the threat from Iraq an imminent one? Probably not. Working through the UN, makes sense given the public's general support of this institution and its ideals. Granted it would not have been a perfect solution to the problem, but would have been in the best interest of the American people. That much is easy to see in the rush.



JULY 5: READINGS
Interrogating Detainees


Description of Situation
A very important set of moral imperatives regarding the treatment of United States detainees has been consistently flaunted by the Bush Administration since 9-11. This is the watershed event to which the administration constantly points when any question of the means versus the ends is raised. The next talking point or two will usually contain the phrase "since 9-11," or "who would have thought that 9-11 would happen?" The upshot is that, at least in the minds of Bush and his buddies, 9-11 justifies most any atrocity short of Abu Ghraib. Of course, it is easy to take the moral high road to condemn torture in every form and under every circumstance. Those sentinels in charge of America's perimeter and the protection of the American people, the reasoning goes, may be seriously hobbled by the law in this matter. Would anyone care to take responsibility for that? I, for one, would. The law in the matter is as clear as day: torture is illegal under both the laws of the United States and the rest of the civilized world. No justification for it can EVER be offered.

Why is this so? The history of the development of these laws is complex and long and way beyond the scope of this analysis. What we have seen is the administration hemming and hawing its way around the laws, despite of its frequent appeals to the rule of law. It has further expressed to the Iraqi government and many others that it expects OUR prisoners to be treated with dignity and respect. What is it called when a government sets a high public standard for others that it has no private intention of keeping itself? Oh, yeah:
cowardice. Or, at least, hypocrisy. Being attacked simply does not justify this kind of moral contortionism, especially with regard to far-removed events, such as the Iraqi insurgency. Like the boy who cried wolf, the administration stretched this 9-11 connection issue to the point of utter incredulity. Moreover, they have turned logic on its head. So it goes: We live in an dangerous world, therefore, we must do unpleasant things. However, the actual effect of Americans mistreating prisoners in their keeping is to create martyrs, inspire resistance, and, ironically, make the world a whole lot more dangerous for our own prisoners.

Let it not be forgotten that Geneva Convention and like-minded codes of justice were born of much blood, suffering and injustice. Should we so quick to dismiss them as "quaint" holdovers from the Old World? Do they not serve an incredibly important stopgap against moral chaos and the decay of civilization as we know it?

Ethical Issues
Clearly, the Bush Administration has ethical and Constitutional objectives obligations to protect the American people using the most effective and efficient means possible. What happens, however, when the need for efficiency outranks the need for effectiveness? Some would say "Oh, don't be so naive! Isn't that always the way in government?" However, it is a serious problem that deserves serious consideration. By choosing efficiency in the form of torture, the administration denies the fact that physical and mental torture are notoriously ineffective as interrogation tools. They generally do not result in usable and accurate information. Victims tell their captors what they think they want to hear, whether accurate or not, simply to stop the pain. Therefore, it is less effective than other more complex means such as deception. Could it be that we want to tell our enemies: "Hey, we just don't care about that whole accuracy thing anymore. We just want you all to suffer based on your incompatible belief system. You might want to reconsider that." Furthermore, if we rule out torture as ineffective based on the principle of blowback, as we should, we would stand to protect American values as well as our people. That would be the true test of those values: whether we could countenance hostile beliefs and still protect human rights. E pluribus unum. We stand together for something more than merely what we oppose.

Rational Alternatives

1. Reinstate the successful policy of against torture in all its forms, in all venues, for ALL persons. Of those to whom much is given, much is expected.
2. Work through the UN to strengthen world unity against torture by adopting a global treaty against torture in all military and onon-military situations.
3. Request that other nations do ur dirty work for us. Keep our collective hands, if not our consciences, clean.
4. Improve and clean up methods of interrogation so as to obviate the use of forbidden or questionable practices of interrogators. Improve training.

Discussion
The Eight Amendment of the Constitution specifically forbids the use of cruel and unusual punishment against all persons. It rules it out, period, with no reference to whom it might be used against. The Bill of Rights has been understood to apply to more than just American citizens, but as a general set of negative principles against tyranny. We, as citizens, ignore that only at our own peril. Some have argued that restricting interrogation methods in ANY way puts us at a disadvantage versus desperate nations and groups with few moral qualms about torture.

I disagree. In the final analysis, high standards protect our prisoners and make the world a more civilized place. If anything, what is needed is more international agreement and solidarity on the matter, especially with regard to non-military prisoners (enemy non-combatants are humans, too, no matter how despicable their actions). I will not even attempt to justify Number 3, especially since such shady practices as extraordinary rendition already stand to make this atrocity a de facto American SOP. The cruel reality of such improper procedures is that they bind our own hands and perpetuate injustice. Ethical compromises of this sort are a slippery slope that can only lead us downward. That is why Number 4 makes sense and might be part of a long-term course to improve our intelligence.

Recommendation
Therefore, I would lean toward adopting universal standards of prisoner treatment (Number 2) versus locking in any disparities by legislating unilaterally. Of course, there are many practical considerations that would work against this possibility. It would be a long slow process of consensus building and political arm twisting. Who knows? Perhaps by that time the conflict in Iraq will have subsided. The point is that if, as the President is so fond of pointing out, we are truly in this fight for the long haul, we must act that way. Lowering our standards benefits no one but our enemies, who would enjoy a chance to deconstruct Western Civilization and force our ethical standards back to the good old Medieval days of thumb screws and iron maidens. Let us not forget where we have been as a species or we stand inevitably to wind up where we surely do not want to go.

Don't Take It Like A Man: Take A Stand!
The Theme of Ethical Redemption In "North Country"


Edmund Burke observed, "The only thing necessary for the triumph of evil is for good men to do nothing." Director Niki Caro's 2005 film treatment of the nation's first class-action sexual harassment lawsuit takes that ball and runs with it. Whether women should be treated as equals or enjoy protected status in the workplace may be the not-so-burning question posed by the film. The conventional answer provided is, of course, "both." There is a great deal of literature regarding the need for protection for minorities rights against the tyranny of the majority in free market milieus. Thus, I won't waste time trying to argue either for or against the need for workplace protections. Those protections have been a de jure fact of life for quite some time now. The wisdom that shaped them is grounded in experiences too common to have been anything but symptomatic of gross repression. Besides, equality in the workplace is the law.

The de facto situation since the establishment of protections, however, has been quite different for women for a number of reasons. I won't pretend to be able to list all such factors, however the film does suggest some poignant answers. Beyond its tendency toward melodrama and preachiness, the film does offer a nice snapshot of the destructive, misogynist male dominated culture coming into contact with new economic and social realities. Its seductive style and artistic integrity takes one inside a an economic microcosm completely dominated by a single employer. Other films such as John Sayles' excellent "Matewan" have already successfully mined this ethical territory from the repressed worker perspective. However, never has a feminist perspective been presented with such rich sense of pathos.

The recency of the events makes it hard to believe that such things can and still do go on in America. However, the point driven home is that sexual harassment is not merely a dyadic predatory situation. It is also a social ill that is driven as much by good intentions as bad ones. Specifically, not speaking out is the evil at which the film takes aim and it leaves one squirming with moral indignation over how thin the veneer of goodness is in otherwise perfectly decent neighbors. In other words, sexism takes a village.

The central character, Josey Aimes, is loosely based on a real complainant in the seminal 25-year legal ordeal behind Jenson v. Eveleth, the first successful sexual-harassment class-action lawsuit, in which female iron miner Lois Jenson battled misogyny in the iron mines of Minnesota's North Country. I say loosely because the producers of the film chose intentionally to dramatically alter the facts to heighten the emotional impact of the events. (This is a studio product here, after all, not an indie documentary). Apart from the artistic manipulation, many of the appalling incidences of harassment and violence portrayed in the film are not in dispute. Were the story a work of pure fiction, there would still be much to learn from the complex interrelationships of the characters and where the story arc takes them. The story presents an intricate patriarchal web of long-standing roles and relationships that glues the cold, Northern Minnesota community together.

Josey plows headlong into this web and finds it not at all to her (or to our) liking. This is where the film tends to get a little preachy, since she had us at hello. We are all on board with this feisty single mother simply trying to eke out a decent living and do right by her children. When she is attacked, revulsion is the natural reaction for all but the most hardened misogynist. Of course, one cannot help but despise the Neanderthal attitudes of the miners and the slimy manipulation of corporate big shots and reptilian trial attorneys. Thus, the inevitable clash between the corrupt homosocial good old boys network and the young, virtuous upstart is somewhat predictable. What are interesting, however, are teetering family and peripheral community relationships that are stressed to beyond the point of breaking during the conflict. There is a sense of history that is built up scene by scene that slyly pulls one into the place and time, whether it be memories of Christmases past or a father's silent smoldering meltdown over a cup of coffee. This film is not about set pieces or titanic revelations. Rather it is more about what it means to stand up when confronted by entrenched evil. Furthermore, it is about the remarkable bravery of the pioneers of new social orders, in this case the sex neutral workplace.

The two central relationships that form the emotional core of the story are between Josey and the two men closest to her: her miner father Hank and her teenage son Sammy. Josey has been more or less estranged from her father since high school after having Sammy out of wedlock, an unpardonable sin to many in the town, including Hank. This shame has been passed down intergenerationally to Sammy who harbors a grudge against Josey for his lot. His anger causes Sammy to take sides against his own mother as the spark of misogyny flashes in his heart.

Hatred and injustice are very much inherited. They are learned behaviors modeled by parents, teachers and heroes--those whose opinions are most valued. Their personal failures become endemic in the next generation. Sammy's loyalties are thus torn between his subjective need to support his mother under attack, and the easily-manipulated mania for conformity that is so symptomatic of adolescence. He is conflicted because he also has been stigmatized for her actions and tries to distance himself from her.

Meanwhile Josey's father, an iron miner who has come to assume the worst about his daughter, is bitter with disapproval over Josey's choices. To him, this was another in a series of challenges to his authority over her, bringing up residual resentments from Josey's stormy adolesence. When he sees her being drawn into the pit of industrial horrors at the mine, he characterizes it as an lesbian-driven affront to manhood that will come to no good end. The longtime social order of the town is under attack in his view. Indeed, he and other union miners see it not only as a feminist feint, but also as mine management's cynical ploy to undermine the union by introducing radical elements into the workforce, divide-and-conquer-style. A weakened union is good for shareholders. Management, perhaps wanting to update its image as more progressive, was hiring young, virile females as a second generation attempt to meet the legal requisites for equal opportunity.

Josey was hired, ironically, based on her gender, exactly what equity is ultimately a struggle against. Feminists want to be given the same chances as males and treated as economic equals. At the same time, they demand to be treated differently socially when it comes to workplace protections and basic amenities. Thus, while the mine's owners may have some subjective sense of responsibility to join the zeitgeist and become more progressive on some level (whether motivated by greed or not), they also had no choice but to make a good show and meet pressing objective responsibilities to the law with regard to hiring practices. Myopically, they chose imprudently to ignore serious legal prohibitions against condonation of sexual harassment. Hank sides against Josey until he realizes the destructive maelstrom she has unleashed threatens to utterly destroy what is left of his relationships. By ignoring his responsibility to protect Josey, he is headed down a slippery slope toward chaos and dissolution, while playing right into the hands of management. When he eventually sees these truths, his humility and moral outrage are inspirational. This was the part of the movie where even I cried. This thoroughly dour and disloyal man becomes the male role model of the film and an example of how to act responsibly in the face of cruel injustice and misogyny when no one else would.

He and the other males in the film are faced with an ethical dilemma to either downplay the nature and the scale of the misogyny or to challenge it at great personal risk to themselves and their families. The threat for them is fairly well implied: If they choose not to "go along to get along," they will become pariahs and suffer much the same fate as the victims. The male miners, of course, don't have quite as much at stake the females who are challenging the status quo--after all, they are unlikely to be raped.

Nevertheless, no one speaks up for these female miners, not even Josey's own father who all but tells her that she is asking for trouble. Meanwhile, the female protagonist is advised repeatedly by the moral proverb to "take it like a man." One encounters this rationale from antifeminist rhetoric fairly frequently: "they want their cake and to eat too!" This narrow mindedness is also encountered in film. In other words, no one can avail themselves of equal rights and special protection of rights at the same time, which is patently absurd. Of course they can. A classic rule of progressive government states that "equals should be treated equally, while unequals should be treated unequally." No one would reasonably suggest, for example, that the rights of African Americans cannot enjoy both equal status with their Caucasian brethren and yet still enjoy special legal protections against discrimination. They do under law.

For many victims of discrimination and systematic oppression, protection, whether through laws, regulations, company rules, or the courts, is the ONLY effective means toward de facto equality. That is what makes their experiences so vital to forming effective political and social responses to injustice. Furthermore, when the need for those protections is so utterly blatant and urgent as portrayed in the film, it would be morally indefensible to make a case against them.

The courts are often the last resort to both shape and maintain the rights of protected groups such as women and minorities. Even in situations where politicians are unwilling and/or unable to act ethically in response to social injustice, lawsuits offer a last resort to right society's horrible wrongs. Though reactionaries may rail against the abuse of civil law as a form of tyranny of the minority, the fact is that many progressive protections that we now take for granted as citizens were first established by judges who defied conventional wisdom and were not afraid in their proper roles as Constitutional officers to "legislate from the bench." Later these protections were codified into law by less-imaginative legislators and timid executives who were unwilling to do what is so obviously right were it not for all of the political sniping and grandstanding.

Likewise, the film makers place the onus on individual citizens, particularly all persons in positions of higher social status, to speak out against sexual harassment and discrimination whenever they encounter it. Though this message is implied, one can clearly see it in Hank's journey from bad father to good. It is also visible in the film on the faces of many of the other miners, male and female alike, who are clearly uncomfortable with the status quo, but reticent to speak honestly about their disapproval. The viewer cannot help but cheer them on to take responsibility for the situation, for it is theirs just as much as it is the key players.

There is Glory, Josey's mentor and first generation female miner who shows her the ropes at the mine. When she learns of Josey's plans to sue the company, she loses all hope and a great deal of faith in her friend who seems to be spending all of Glory's hard-earned social capital with the men. Her dilemma is whether to work for change within the system incrementally with the male miners whom she trusts and whose grudging respect and trust has had to dearly earn; or, on the other hand, she can do the right thing for her friend and for female miners in general by joining the class action. Her courtroom statement that she stands with Josey, even when horribly paralyzed, inspires the other female miners to take a clear stand for justice. Sherry, Josey's co-worker, needs her job to support a dying father. Practical matters such as that prevent her from pursuing justice for her own cruel mistreatment by male miners. Hers is the swing vote, the pressure point at which the suit can become a class action. Inspired by Glory's support she is able to stand up as well. By allowing for the class action, that one statement of support sets the courtroom rocking, the ripples from which spread outward in society from a Minnesota mine shaft to the boardrooms of New York--indeed, throughout the entire social fabric of the United States.

Then there is Josey's mother who goes from dutiful resignation, to moral crusader in one gigantic leap when one day Hank comes home to find she has packed her bags and checked into a local motel. She could no longer countenance her husband's disloyalty to her child and her grandchildren. "She had a baby, Hank! She didn't rob a bank." she had shouted at one point, clearly at her rope's end. She had then warned him he would soon find himself doing his own laundry. By rock Hank's ethical boat, she manages to set the whole town rocking, for Hank is the touchstone. He is old school and a long-time insider. If he could make that ethical transition from capitulator to collective conscience, then anything was possible and she precipitated it. Even more conflicted is serial harasser Bobby Sharp. His long dead romantic relationship with Josey is resurrected, albeit in a horribly mutated form, upon Josey's hiring. Their triste ended suddenly in high school when Bobby witnessed Josey's vicious rape at the hands of a teacher that results in her pregnancy. After fleeing the scene and refusing to help, Bobby had deteriorated to a shadow of himself. But for occasional flashes of humanity, he had become a monster. His shame had become manifest as violent misogyny. When his sin, revealed Hollywood-style on the stand, dashes management's evil scheme to discredit Josey, he suddenly becomes a kind of pathetic hero, redeeming himself when his shame for not helping his friend finally overcomes his need to save face and avoid legal penalties for all of his crimes against Josey and others. Even the worst that is among us, by this example, can find absolution by turning to justice.

By simply seeking the same respect accorded to men as required by law, Josey transformed the lives of the people around her and changed the perceptions of her community at large. However, it is only through collective action that the problem can be addressed. Refusing to "take it like a man" applies not only to female victims of sexual harassment, but also to anyone exposed to it. The tendency to downplay the negativity and bad intentions associated with harassment do nothing but encourage it through misplaced tolerance. Males and females alike must stand up and rock the boat from time to time if, for no other reason, than to maintain a sense of personal integrity.

Moreover, if belief in the principle of equal opportunity for minorities holds any kind of water, we as co-workers and family must do more than pay lip service to it. It is a burden as well as a privilege that we ignore at our own peril, for tomorrow it may be our own wife, or daughter or friend who is the victim. Thus, we are all the lesser for simply doing nothing. When confronted by evil, in Josey's words, "Take a stand!"