Archive for the ‘9/11’ Category

Reflections on Victim Compensation Ten Years After 9/11

September 15th, 2011 No comments

The tenth anniversary of September 11 has been covered from an astonishing array of angles. There are mainstream pieces inviting us to reconsider our response to terrorist threats, dissections of the mindsets of conspiracy theorists, explorations of how to talk to children about tragedies, a photographic tribute to the World Trade Towers, and, perhaps most oddly, a look at the market for Ground Zero memorabilia.

But one scans the web in vain for an exploration of this question, which 9/11 chillingly raises:

What do we owe the victims of misfortune?

Perhaps this occasion for (mostly) solemn reflection can trigger a discussion of the choices we make in compensating those afflicted by all kinds of personal and collective disasters – because the machine we created to compensate the victims of September 11 bears little resemblance to the way we usually assist those in need.

Shortly after 9/11, Congress rushed into law the Victim Compensation Fund. Born of a combination of generosity and a desire to protect the airlines from lawsuits for their negligent security procedures, the Fund expended more than $7 billion in tax dollars, and payouts to individuals were as high as $8.6 million Why such hefty pay-outs? Because the Fund is largely based on a tort model of full compensation for those injured by wrongful conduct.

This is almost unprecedented, and it isn’t even over. Last December, Congress breathed life back into the Fund, making payments available to those able to prove injuries from their exposure to the toxins present around Ground Zero in the months following that tragic day. While the newly available $4.3 billion will mostly compensate first responders, others who can prove injury that occurred at the broadly defined “crash site” can also file a claim under the Fund.

Criticisms of the Fund mostly come from those claiming it’s not doing enough. Jon Stewart famously let slip his comic mask on behalf of first responders,  railing against Congressional dawdling on reopening the Fund to compensate them. He’s even been credited with having helped embarrass and jolt lawmakers into ponying up the $4.3 billion. And just a few days ago, he and Daily Show guest Sanjay Gupta commiserated on the decision not to treat cancer as a compensable, 9/11-related injury – even though the science isn’t yet there to substantiate causation.

Stewart’s reaction is hard to criticize only if we look at the Fund in isolation. But it’s not unassailable if we take a broader focus. What if we had a serious discussion of the larger questions that the Fund raises: Whom do we choose to compensate for disasters, and for how much? And how do we define “disaster”?

I discussed these matters with a law school classmate, Harry Waizer. He was head of the tax department at Cantor Fitzgerald on that clear September day, and was in an elevator heading for his 104th floor office when the plane struck. Badly burned and given just a five-percent chance of survival, Harry is now flourishing despite the emotional and physical scars of that day. He’s back at Cantor (part-time), and has a happy marriage and three great kids.

Harry realized what he called a “substantial” payout from the Victim Compensation Fund. Although he understandably won’t share the precise amount, the payment included a big chunk for lost income, and another hefty recovery for his pain and suffering.

Is this fair? Harry doesn’t think so.  “I don’t find the argument for having this Fund particularly compelling,” he told me. “I’m a very grateful beneficiary, but if you ask me in an objective way whether this kind of compensation system for victims of this kind of event is appropriate, I’d have to say ‘no’.”

He’s right. Since the source of the Fund is general taxpayer revenue, some of the taxes paid by a low-income worker – for example, a manual laborer with no health benefits – went to pay Harry and the thousands of others who received compensation.

The Fund stands almost alone as an exercise in taxpayer-funded largesse. And its one close precedent only invites further, disturbing questions about our national response to disaster. In response to the 1976 collapse of the Teton Dam in Idaho, which resulted in eleven deaths and thousands of cases of homelessness, the federal government created a compensation program that paid out some $200 million to victims.

It’s true that the government itself had been responsible for that disaster. But government ineptitude (in the design and construction of the levee system) also played a crucial role in the vast human suffering from Hurricane Katrina – and there’s no similar compensation fund for those victims. They’ve had to make do with much less generous federal disaster relief funds.

The Teton Dam case is enough to show that the difference in our national responses to Katrina and 9/11 reflects a distinction between natural disasters and terrorism. If further evidence of our national inconsistency were needed, consider the victims of the 1995 Oklahoma City bombing. After the Victim Compensation Fund was established, legislation to compensate them was introduced in Congress – but died there.

There’s no principled way to reconcile any of this. Yet there’s a lesson to be extracted from our inconsistent responses to disasters. I turn again to Harry Waizer.

“My brother-in-law was jogging by the side of the road when he was hit by an uninsured drive. He has suffered terribly, no less severely injured than I. And there’s no fund for him.”

But Harry’s brother-in-law, and so many others, deserve more than our sympathy. Where’s the justice in compensating some generously, while ignoring others? Crime victims, those displaced by natural disasters, and even those who lack health care are no less deserving of a helping hand than the victims of September 11. Recovery shouldn’t be made to depend on whether a given tragedy sparks our national imagination, as that tragic day did to an unprecedented extent.

In a society with limited resources, we have to think hard about the choices we make, and it’s too much to expect a perfectly consistent approach. But we should see the consequences of misfortune and tragedy as more important than their origin, and design compensation systems that provide a basic floor for all victims – medical care, basic housing, and help in rebuilding their jobs and communities would be a good start. That’s basically the model that the Federal Emergency Management Agency follows, and would be a good place to start.

As recent natural disasters – and Eric Cantor’s tone-deaf posturing about whether to help their victims – have reminded us, the time to discuss these issues is always ripe. Let’s use the tenth anniversary of that terrible September day to reinvigorate that important discussion.

The 9/11 First Responders Bill is Fair Enough (but just barely)

December 23rd, 2010 No comments

Over at, I have a just-published piece that looks at the 9/11 first responders bill that was passed yesterday.

A regular readers of this site know, I have a strong interest in this issue of compensating victims of disaster: How do we do so in a way that’s fair not only to those compensated, but to others who suffer life’s indignities but don’t have a fund in their name? In this case, I think that the law is probably justified; but if it is, so is compensation for victims of Hurricane Katrina.

I’m only upset that the editor (who’s great) eliminated my favorite phrase: “Jon Stewart’s incinerating anger….” Oh, well. At least you get to read it.

Best of the holidays to all. I’m blogged out for now.

Five Questions About the BP Compensation Fund

June 17th, 2010 No comments

A timeline of the disastrous BP oil spill in the Gulf of Mexico

Under withering pressure from the White House and an enraged public, BP has agreed to establish a compensation fund for those affected by the oil spill. (We need a new name for this disaster. “Oil spill” doesn’t quite capture the magnitude of what happened.) For now, BP has committed to a cool $20 billion for the fund (to be paid into the fund in four yearly installments). That’s welcome news, as is the announcement that Ken Feinberg will be the Fund’s administrator. I’ve had a couple of brief conversations with Feinberg in connection with his administration of the September 11 Victim Compensation Fund. Although the Fund itself was open to criticism for using government money to pay up to $8 million for the best-compensated vicitms, Feinberg himself was fair and compassionate. He also oversaw executive compensation in the wake of the financial bailout, and somehow managed to do that well, too.

The Fund is just now being set up, but here are a few key questions I have:

1.  Will the money, once in the Fund, be shielded from creditors if BP goes into bankruptcy? That’s vital.

2.  Who will be eligible for recovery? The talk has been about compensating fishermen for economic losses, but what about, say, restaurant owners whose businesses are affected or even destroyed by the inability to get fresh fish? How about hotels that accommodate sun-seeking tourists? Under the prevailing tort law, they’d have a tough time recovering. What about under the Fund? How heavily will it lean on tort law?

3. Will recovery be limited to provable economic loss? What about those who suffer personal injury, possibly as a result of inhaling the vapors? Is the fund intended to compensate them, too?

4. What kind of evidence will count? How flexible will Feinberg be?

5. If a party loses, or doesn’t like the amount of compensation Feinberg awards, by what standard will the appellate panel (of three judges) review his decision? And if the case goes to court, do we start all over again.

Assuming the above questions can be worked out in a satisfactory way, I like this Fund. It takes worker compensation law as a rough model. Both allow quicker and more certain compensation than would be available under the slow, maddening, and unpredictable tort law. And both are funded by the very entities that are presumed to have caused the injury.

This already important story will become an increasing subject of focus as the months go by, and attention shifts from the on-going spill to the tragic and long-legged stories of clean-up and compensation.

9/11, Katrina, and the BP Oil Spill: The Inconsistency of Compensation

May 29th, 2010 2 comments

The by-now predictable, tedious, and irresponsible Republican bulwark against raising or eliminating the criminally low liability cap that would leave claimant against BP out in the cold really has me frosted. And it’s gotten me thinking about how we compensate people for loss in front-page cases: September 11; Katrina; and this BP oil “spill.”

Let’s talk about who was responsible for these tragedies, and how the victims have (or haven’t been) compensated for their losses.

September 11 was, of course, a terrorist act, but under established principles of tort law, other actors could be liable: airport security, airlines, and — further down the chain — the federal government, for missing the warning signs. But the government, to bail out the struggling airline industry, and in an effort to pile sandbags full of money at the border, created the Victim Compensation Fund. At taxpayer expense, the Fund (not really a “fund” at all) paid out more than seven billion dollars, mostly to surviving family members of those killed when the Towers fell. Some received millions, because payment was largely based on a tort model. I’ve criticized this approach, noting that government should not be compensating people as though they’re tort victims, and that doing so reflects a confusion between the principles of corrective justice (righting an imbalance between two parties caused by one party’s negligence) and distributive justice (deciding how best to allocate the resources across society).

To call what happened in New Orleans “Katrina” is really a misnomer, because the hurricane isn’t what caused the widespread and continuing destruction of large sections of the city: the government did so, through the negligence of the Army Corps of Engineers in connection with the building and maintenance of the levee system, and of untold bureaucrats in designing the Mississippi River-Gulf Outlet (“MR-GO”). The government is immune from suit for the levee failure (but not for MR-GO related negligence), so those injured, financially wrecked, or rendered homeless in the wake of Katrina had to content themselves with the meager assistance afforded by the Federal Emergency Management Agency. (Criticisms of FEMA’s response are legion and some, like this one from Kevin Drum in Mother Jones, are devastating; but they miss the more central issue.) I’ve criticized this approach in several places, including the documentary film “America Betrayed,” and this article.

Now comes the BP disaster, which threatens to swamp the rest. Yet because of an ill-considered federal law that I discussed here, BP will be liable for clean-up, but for only a relative pittance ($75 million) for liability to those economically or otherwise ruined. Unless this cap is lifted — and the legal change is made to apply retroactively — or unless there’s a government “fund” created, many of those destroyed by BP’s probable criminal acts will be entitled to…nothing.

How can our different responses to these tragedies be explained? Only by thinking about politics and power, not by looking at justice. But there might be a limit: Expect the law to change, and for BP to be held accountable. (Please!) If not, President Obama has suggested that the taxpayers will be on the hook. If we are (and I wouldn’t object), let’s spend more time thinking about a better model of compensation when we’re all left holding the bag.

And we must demand more comprehensive regulation: As Rachel Maddow pointed out this week (with her outrage well-justified by the facts), a similar spill went on for months about thirty years ago, and the same useless efforts were made then, as now, to stop it. She concludes, correctly, that Big Oil has gotten much better about drilling deeper and deeper (200 feet v. 5,000 feet), with correspondingly higher risks, but not any better at all about stopping it once it happens. Enough.

U.S. Government: Compensate Katrina Victims

November 21st, 2009 1 comment

The recent news that a federal judge has ruled the U.S. Army Corps of Engineers, and by extension, the U.S. Government, liable for at least some of the preventable disasters associated with Hurricane Katrina should lead the government to do what it should have done long ago: Provide generous, long-tail assistance to help the residents of New Orleans get back on their feet.

To see why, just take a moment to compare what “we’ve” done for victims of another disaster: September 11. In that case, the Victim Compensation Fund was created to pay not even the survivors of that horrific event, but their families — in some cases, to the tune of millions of dollars. In all, the Fund spent just under seven billion dollars in taxpayer money for an event that the government was not responsible for.

With respect for the victims of that tragedy, I argued against such lavish compensation here and here. Part of the motivation was to avoid potentially crushing liability against  the airlines for their dismal security procedures,1 but that would have better been done through a direct bailout of those industries. Wait! We’d never bail out a failing company.

By contrast, the government awarded only the minimal payments available under federal disaster relief to Katrina’s victims, despite documented negligence (or worse) on the part of state, local, and federal government. And  the federal government, rather than defend the suits against them on the merits, has raised every possible procedural argument. First, they argued that they couldn’t be responsible for the flood-induced breaches of levees that the Corps had built or maintained, because of the Flood Control Act of 1928. That Act does clearly provide governmental immunity in connection with flood control projects, so the court held that the statute barred some of the claims.

Other claims, though, were based on acts of shocking negligence in connection with the maintenance of the White Elephant known as the Mississippi  River-Gulf Outlet (MR-GO), a navigation short-cut from New Orleans to the Gulf of Mexico. Here is a good summary of the allegations of negligence,  which were accepted by the court after a long trial:

The claimants alleged the government failed to properly design, construct, operate and maintain the MRGO, a 76-mile man-made ship navigation channel that connects the Gulf of Mexico to the Port of New Orleans Inner Harbor Navigation Canal. The claimants further alleged that the design of the MRGO (with the surface width being wider than the bottom width), along with the inevitable widening that would occur from waves in the channel, allowed the MRGO to act as a “funnel” for the Hurricane Katrina storm surge. Additionally, the salt water that was allowed to enter the MRGO from the Gulf allegedly killed off the storm-slowing plants and vegetation, further contributing to the “funnel” effect for the storm surge.

Since MR-GO isn’t a flood control project, the immunity probably doesn’t apply. But because of where MR-GO is situated relative to the damaged and destroyed neighborhoods, only residents in the Lower Ninth Ward and St. Bernard Parish were able to recover. Others are out of luck.

The government is considering an appeal. If one is filed, the brief would likely argue that the more general immunity under the Federal Tort Claims Act protects them. Interpreting and applying that immunity is challenging (for reasons that would numb any and all non-lawyers, and many lawyers as well), but my guess is that the judge’s opinion on that issue would stand.

The Government is likely afraid of the many millions of dollars it might have to pay out once others join the suit. But anyone who hasn’t already filed is barred by the statute of limitations. So the total payout that would be required isn’t clear; and in any event almost surely wouldn’t approach the amount paid out for 9/11.

Here’s a radical idea, government lawyers (Obama Administration): Settle the case! Offer structured payments. Set up enterprise zones and incentives for loans to start-up businesses. Build homes for people.  Rebuild the private medical and public health infrastructure. Such initiatives are long overdue. I have mixed feelings about tort liability against the government in any case, but surely some kind of considered, carefully designed compensation has by now become a national imperative. It won’t erase this national disgrace from our history — nothing can, or should — but it would be a compelling show of compassion.

  1. So now we have to divide our personal hygiene products into small bottles in order to board a plane.

Court Rules Army Corps Committed “MR. GO” No-No

November 19th, 2009 2 comments

This just in: Federal district court judge Stanwood Duval Jr. has awarded hundreds of thousands of dollars to Katrina victims, payable by the U.S. Government because of the negligence of the Army Corps of Engineers.

The government — the same government, by the way, that awarded billions of dollars to the surviving family members of those killed by the September 11 attacks — had tried to stand on immunity for flood-control-related projects, but the court didn’t buy it. The Mississippi River Gulf Outlet (“MR.GO,” to locals) is a shipping channel — not a flood control project — that created a shortcut from New Orleans to the Gulf of Mexico. Now seen as ill-advised, it was also, according to Duval, dismally maintained:

“It is the court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and short-sightedness.”

Unless the decision is reversed on appeal, expect many thousands of displaced and injured Katrina victims to get in line for recovery. As I’ll explain in a fuller post tomorrow, they have a strong case.

Zeitoun — One Katrina Family’s Story

July 21st, 2009 2 comments

In the compelling Zeitoun, Dave Eggers (best known for “A Heartbreaking Work of Staggering Genius”) has created a piece of advocacy journalism that deserves to be read and discussed. I plowed straight through the first 200+ pages on Sunday night, stopping only when I simply couldn’t stay awake. Then I finished it last night, after impatiently putting the kids to bed. Positive reviews and summaries are starting to come in, and there’s a nice interview with Eggers over at Salon.

This non-fiction work chronicles the lives of Abdulrahman and Kathy (nee Delphine) Zeitoun, a Muslim couple living in New Orleans in 2005, when the city was brought down by Hurricane Katrina.

Eggers masterfully sketches out the successful but somewhat plain lives of the couple in sympathetic detail, using the lead-up to Katrina for descriptions of and digressions into:  their successful contracting business; Abdulrahman’s ancestry and childhood in Syria (including a lavish description of his aquaphobic father and his late brother, who became arguably the greatest ocean swimmer in the world); Kathy’s Christian upbringing and her conversion to Islam; and, most significantly, the couple’s loving relationship and their warm family (including Kathy’s son from a brief, early marriage and the couple’s three daughters).

Like any good documentary work, Zeitoun ties the joys, stress, travails and humiliations of the Zeitoun family to the larger issues of our collective national failure during and after Katrina. (The story doesn’t dwell on the failures that allowed Katrina to devastate the city; for that, see this and this.)  As was typical when severe hurricane warnings were posted, Kathy and the kids evacuated the city while Abdul remained behind to protect their home and the many rental properties the Zeitouns owned and managed. The book effectively cross-cuts between Kathy’s odyssey (involving nasty relatives, interminable traffic, and — finally — escape to her best friend’s home in Phoenix) and Abdulrahman’s heroism and subsequent incarceration.

After the flood, Zeitoun (as he’s mostly called) used his canoe — which he’d bought for no real reason some time ago, but now saw as providential — to rescue people who might otherwise have drowned, and to feed dogs who would otherwise have starved. Eggers effectively reflects Zeitoun’s own sense that he was meant by God to stay, and that his actions were heroic (although Zeitoun would never have used that word himself). Yet from the start, Zeitoun and other residents are treated as annoyances by the very government rescuers who were supposed to be helping them.  At one point, two government speed boats zoom past the canoe, almost capsizing it and ignoring his plea to stop. In another inexplicable incident, Zeitoun is unable convince government workers to do anything to rescue an elderly couple that will surely otherwise drown. (Zeitoun and a friend are forced to return and improvise a risky strategy of their own.) Yet for the first two-thirds of the book, the reader is somehow buoyed (sorry!) by the can-doism of Zeitoun and his fellow residents (especially Todd Gambino, who might have rescued as many as 200 people).

Then the book turns dark. Kathy can no longer contact her husband, and, assuming him dead, falls apart by degree (It can’t get worse than this, she thinks.). But Zeitoun isn’t dead; he’s been imprisoned. Zeitoun and others (including Gambino) captured in a house that Zeitoun owned were arrested, placed in a makeshift prison at the New Orleans Greyhound station, and then transferred to a maximum security prison. For almost three weeks, Zeitoun was given no reason for the arrest (there were unofficial statements that he and one of his fellow prisoners “were al Qaeda”), not arraigned, and not even allowed to make a phone call to his wife. The conditions in the prisons made sleep or comfort almost impossible. Despite severe and disabling pain, he was never granted access to a doctor. He was given food (pork) that he couldn’t eat. This is the man Kathy found after those three weeks:

“He looked like a different man, a smaller man, with longer hair, almost all of it white….He’s so small, she thought….She could feel his shoulder blades, his ribs. His neck seemd so thin and fragile, his arms skeletal. She pulled back, and his eyes were the same — but they were tired, defeated. She had never seen this in him. He had been broken.”

Why, though?

The reasons for the treatment of Zeitoun and thousands of others (Gambino spent five months in prison, and after charges were dropped, never recovered over $2,000 that had been taken from him) are complex, but a few realities emerge:

Once FEMA was made subordinate to Homeland Security, the focus — even in a situation that was clearly a natural disaster and not a terrorist strike — changed from public health and emergency management to law enforcement. Homeland Security had thought through how terrorists might exploit the aftermath of a natural calamity and then, doubtless fueled by hysterical media reports about looting, rape and murder, worried less about rescue and provision of basic services than crime prevention. Consider the construction of the emergency prison and the vast amount of time and money that went into it; this isn’t what one does in regard to a public health catastrophe. (See pages 236-237 for a vivid account of this issue.) As Professors Wendy Mariner, George Annas and Wendy Parmet state in a recent article: “Since September 11, 2001, emergency preparedness policies have shifted their focus from public health to national security….[T]his shift is both contradictory and ineffective.” Zeitoun makes this point graphically.

Further, once the issue moves away from emergency management and public health to law enforcement, the potential for abuse soars. Law enforcement will avail itself of all available tools, and, given the opportunity, will come to reflect the worst prejudices of the society. Thus, it’s never entirely clear what impact Zeitoun’s Middle Eastern appearance had on his treatment (was it really all about looting? but then why no chance to explain, no chance to make a phone call?), but it is plain that his African-American cellmates were there at least in part because of their skin color and racial profiling.  This story is the worst:

“One man said he was a sanitation worker from Houston. His company had been contracted shortly after the storm to come in and begin the cleanup. One morning he was walking from the hotel to his truck when a National Guard truck pulled up. He was arrested on the spot, handcuffed, and brought to Camp Greyhound….He was in uniform, and had identification, the keys to his truck, everything. But nothing worked. He was charged with looting and put in the cages….” (pp. 258-59)

Don’t even get me started on the FEMA trailer debacle that forms a kind of slapstick sideshow to this extraordinary work. (It’s detailed on pages 308-310. Preview: a trailer is pretty much useless if you can’t get into it.)

The book concludes with a chapter about the Zeitouns’ life now. Abdulrahman is more of a workaholic than ever, seemingly trying to forget by rebuilding. And “Kathy has lost her memory. It’s shredded, unreliable.” Because of what happened to her husband, she’s become a fretting mother, afraid to allow her kids the freedom they need to develop.

The Zeitouns (especially Abdulrahman) emerge as particularly resilient, emblematic of the American optimism and capacity for reinvention that may have led this Syrian national here. Not even the Department of Homeland Security was able to crush that spirit.

By all means, buy this book. Eggers is getting none of the royalties, having committed them to various relief organizations that are spelled out at the end of the work. And it will keep you up late.

“A Day That Will Live in….”

May 5th, 2009 2 comments

News broke today that former New York City Mayor Rudy Giuliani, who presided over that great metropolis during the September 11 attacks, failed to attend the wedding of his two close friends, Howard Koeppel and Mark Hsiao, in whose home the mayor resided for six months during his very public divorce, well before the tragic events of September 11, 2001.

Giuliani, who mounted a campaign for the 2008 Presidency that was inexplicably unsuccessful despite his heroic efforts in the wake of the September 11 attacks, had this to say in defense of his decision not to attend: “9/11. Since the events of that tragic day, I feel I can no longer support gay unions. Such support could anger other nations, thereby triggering a repeat of the events of September 11. September 11, 2001, that is. Unlike some other people, I can’t forget what those attacks of September 11 — usually referred to as “9/11″ — did to the City of which I, at the time, was Mayor. National security is a priority, and I now support the public waterboarding of gay couples if it can avert a tragedy on the scale we, as a nation, and I — as Mayor — suffered on September 11, 2001.”

“I wish the couple, with whom I stayed for several months at a time well before September 11, every happiness,” concluded the former Mayor of New York City, which apparently will never be the same after the events of September 11, 2001.

Categories: 9/11, humor, Marriage Equality Tags: , , , , , ,

Equality Forum Day 3 (Part 1): “Tomorrow Hour Zero”

April 29th, 2009 No comments

The day before the tragic events of September 11, 2001, U.S. intelligence intercepted a communication known to be from al-Qaeda, boasting that “tomorrow is zero hour” (literally translated above). This possibly interesting statement went untranslated, though, until September 12. According to Alex Nicholson, who apparently speaks all living and several dead languages (and also looked like he could take me apart with his bare hands), the military was short on Arabic translators. Why? Because of discharges resulting from the “don’t ask, don’t tell, don’t pursue” — but do compromise national security — policy then and now in effect.

Nicholson and fellow National History Panelist Julianne Sohn were both victims of this insane policy. Nicholson’s colleague snooped the damning information about him from a letter he’d written (in Portugese, by the way), and then reported it a few weeks later apparently out of spite. This accomplished translator, and scion of a military family, was out of a job in less than a year. Sohn had a much longer career, that finally ended when a colonel called her (while she wasn’t on active duty) to “read her her rights.” In describing this event for the first time publicly, Sohn quickly lost her composure and dissolved into tears not seen since the final of this year’s Australian Open.

Just like that, I got it.

I’m not pro-military, generally. My dad was in the Navy, but only briefly and mostly he was, er, a lifeguard stationed in the less-than-hazardous State of New Jersey. I grew up  just close enough to the Vietnam era to have breathed some of the anti-military air (which, by the way, is mostly unjustified and more than a little classist). And I’m by temperment and philosophy a pacifist (mostly). So I admit that I didn’t exactly flush with excitement upon learning that this year’s history panel would focus on “gays in the military.” But listening to these stories — especially Sohn’s — was profound and arresting. Here was a woman whose life and identity were all about the military. Now, after years of what was surely a profound struggle to manage the cognitive dissonance that results from being a part of an organization that commands your silence, it was all falling apart. Of course this is painful to call to mind. But why did this happen to her, and why are these discharges still taking place? As scholar-panelist Nathaniel Frank put it: “Wait. You’re being investigated by the U.S. Government because you’re a lesbian? It’s 2009!”

Well, how did we get here? What justifies this ban? Frank issued “the historian’s challenge” to the audience: Step into the shoes of those you disagree with. Then see if you can understand their perspective. OK, I did. And I can’t.

Frank and panelist moderator Aubrey Sarvis, Executive Director of the Servicemembers Legal Defense Network (SLDN) provided a thumbnail review of the history and justifications for the exclusion, which is been official policy only since the 1920’s. (Here’s the first of two book plugs from today’s Forum: Nathaniel Frank’s book, “Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America” — copies of which just happened to be available for purchase at the event — provides a comprehensive review of this history. It’s been favorably and informatively reviewed by Janet Maslin in The New York Times.) My simplistic take on the evolution of the military’s treatment of gay soldiers is that, as gay identity and culture became harder to  ignore, the military’s exclusionary policies became more Draconian and defensive. (In a similar vein, think of state anti-marriage equality constitutional amendments in response to a rising tide of open gay relationships.)

This cascade of policies has led to the “don’t ask, blah blah blah” policy now in force. As Frank states: There’s no evidence of any kind to justify it. It’s a remnant, a soiled selvage from an era when gays were regarded as sick and sinful. That image still has enough purchase in the military for them to be able to use coded arguments, such as “troop  cohesion,” in defense of the indefensible. Frank then raised a related point that I’d not considered: By putting gay sexual orientation forward as a ground for exclusion, the policy has the unintended consequence of putting the issue of sexuality “on the table” for all service members. “Am I acting straight enough (even though I am straight)? How will my  actions (or inactions)  be interpreted?” Does this seem like a positive effect on “unit cohesion” to you?

The policy may disappear as soon as this year, but maybe not, either. The panelists seemed to agree that Obama’s vocal support is absolutely vital; support he pledged during the campaign, but hasn’t articulated since taking office. I had the sense that their patience will run out soon. All emphasized the need for education and activism. Sohn and Nicholson have really taken up this cause with fervor, as has Frank (in a more academic but also compelling way). Sohn’s biography, detailing her impressive service, is here. Nicholson is now Executive Director of Servicemembers United, an advocacy organization for gay and lesbian military and the issues affecting them. (His blog is pretty good, too.)

At some point towards the end of the presentation, Sarvis put this question to the panelists: “Why should we care about this issue?” By the time he did, only a true and committed blockhead could have failed to understand its importance. Frank said it best: We should care because this policy “is a blemish on the integrity of our Armed services and on our entire nation.”


Let me take a step away from reporting for a moment to make a broader statement. As I was listening to yet two more stirring panels tonight (OK, it’s last night by now), I had this thought: Perhaps by now I should be numb to all of this, my interest starting to flag. In fact, quite the opposite is happening. I remember that “the madder Hulk gets, the stronger him gets.” I’d say that “the more I hear, the more urgent all of this seems.”

There really is a great deal to do, on seemingly scores of issues big and small. These zealous panelists (including those on the family law panel, about whom I’ll blog after getting some sleep) who donate their time and enthusiasm to Equality Forum and countless other events, should inspire us all.

Tortured Legal Analysis

April 19th, 2009 No comments

Last Thursday’s release of the so-called “torture memos,” written by the Justice Department’s Office of Legal Counsel in the Bush Administration to justify “harsh interrogation techniques,” has brought down a hail of commentary from all points along the political spectrum. I’m reluctant to wade into this mess, mostly because it’s hard to find an angle that’s not been taken.

One point that’s been insufficiently reflected on, though, is the paradox of the “top-drawer”  lawyer. Whenever a client has an extremely complex, embarrassing, or possibly illegal idea, they make every effort to find the very “best” attorneys; those whose legal acumen and skill at minute parsing of argument and language give them the best chance of success.

So it is at the highest levels of government, populated in the main by attorneys churned out by the most elite law schools: Lawyers like John Yoo, Jay Bybee, and Steven Bradbury, each of whom played a substantial role in the creation of the crucial memos (from 2002 and 2005) authorizing the interrogation techniques that have generated the justified outrage that has spewed forth over the last several days.

A little background: The United States is signatory to the UN Convention Against Torture, which these and other attorneys had to gyrate around in order to green-light what the Bush Administration wanted to do to terror suspects. How to justify waterboarding, for example? Well, even though the 2002 memo conceded that the technique “constitutes a threat of imminent death,” it didn’t violate the Convention’s prohibition against the “infliction of severe mental pain or  suffering” because the mental harm wasn’t “prolonged.” Apparently, the drafters “forgot” that, in describing the technique, they stated that “it may then be repeated.” At what point would it add up to “prolonged” mental harm? This just in: 183 times was OK, according to a Times story detailing the detective work of bloggers who managed to read the number in a redacted memo.

That number is (I hope) an outlier, but it showcases what will happen when “top” lawyers are turned loose on a document. Unless they have a moral compass beyond their sere legal knowledge, virtually any reading of a qualitative standard (“severe” or “prolonged”) can be argued for (if not ultimately supported). (Quantitative restrictions are harder to get around: Maybe the Convention should have said: No more than x hours of sleep deprivation; or only y waterboardings are permitted. Let y=0.) This isn’t surprising, really; when I read the memos, I found myself using my own analytical abilities to agree or disagree with various of the conclusions the writers reached.

What is the check on this, other than the probably impossible attempt to predict and then prohibit or quantify every method of cruelty the human mind can devise? I can think of two: James Comey1 and the sheer moral repugnance of enough of those “in the field.”

As Deputy Attorney General under John Ashcroft, Comey is perhaps best known for a bizarre confrontation in 2004 with disgraced White House counsel Alberto Gonzales and Chief of Staff Andrew Card; the two were on their way to the ailing Ashcroft’s hospital bed to try to persuade him to re-authorize a domestic spying program that Justice had just determined was illegal. Comey learned of this maneuver and raced in ahead of these ghoulish opportunists, putting a stop to their plan. But Comey also supported Jack  Goldsmith’s rescission of the 2002 memo, and objected to Bradbury’s 2005 memos. Could he have done more? Frankly, I don’t know. But if more had been as moral and determined as he, perhaps some of this could have been prevented.

Then there are those in the field. As Seth Kreimer, a law professor at Penn, details in his article, “‘Torture Lite,’ ‘Full-Bodied Torture,’ and the Insulation of Legal Conscience,” 2 much of what we’ve learned about the abuses committed in the name of the war on terror came out because of the simple moral outrage of those on the ground level:  “Specialist Joseph Darby, outraged by his discovery of photographs depicting the abuse at Abu Ghraib, was impelled to bring the matter to investigation because ‘it violated everything I personally believed in and everything I was taught about the rules of war.’ Master at Arms William Kimbro, a ‘dog handler,’ as recounted by the dry prose of the Taguba Report, ‘knew his duties and refused to participate in improper interrogation despite significant pressure.’ General Anthony Taguba put his career at risk by actively investigating and accounting for the abuse at Abu Ghraib. Members of the JAG Corps resisted the effort to dilute protections for prisoners, and ultimately they revealed that dilution to the human rights bar.”

Moral outrage indeed. Let me close with the power of one image, selected from among literally thousands, that makes the point that the Bush lawyers’ language sought to occlude:


  1. This is odd, because Jim Comey and I shared an apartment in Hoboken for about a year in the mid-1980’s. We lost touch some time after that, and evidently his politics and mine aren’t identical. But I have tremendous respect for him for reasons mentioned above.
  2. 1 J. Nat’l Security L. & Pol’y 187 (2005)