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Kick ‘Em to the Curb

May 23rd, 2009 No comments

A story in Friday’s NY Times speculated on the possible connection between high-level social interaction (playing bridge) and the ability to ward off the dementia that typically accompanies old age. Although the point wasn’t as clearly made as it might have been, the author seemed to be saying that only one in 200 people lived to the age of 90 without significant dementia (although the accompanying video, which is better than the article, puts the number at 1,200). By age 95, the numbers are even worse. Yikes!

If the nonagenarians featured in this story are typical success stories, sign me up for bridge lessons immediately. True, the story is more fascinating feature writing than compelling science (no one knows, for a start, whether these bridge players are active because they’re sharp, or vice-versa), but it contained an interesting insight into the ruthlessness of the over-90 crowd. For although some players knew when they could no longer “hold their cards” and voluntarily withdrew from the games, others didn’t. And then they were, effectively, kicked out. Consider this excerpt from the article:

“’The first thing you always want to do is run and help them,’” [one woman] said. “’But after a while you end up asking yourself: “‘What is my role here? Am I now the caregiver?” You have to decide how far you’ll go, when you have your own life to live.’

“In this world, as in high school, it is all but impossible to take back an invitation to the party. Some players decide to break up their game, at least for a time, only to reform it with another player. Or, they might suggest that a player drop down a level, from a serious game to a more casual one. No player can stand to hear that. Every day in card rooms around the world, some of them will.

“’You don’t play with them, period,’” [another woman] said. “’You’re not cruel. You’re just busy.’”

Busy?! Doing what, one’s inclined to ask. How about staying alive? At some point, the very old realize that the sands are rushing out ever more quickly, and many decide that they’re better off only doing what they want to do. In extreme cases, this can take the form of passing gas in public, but usually it’s much less apparent that than. I’m reminded of my grandmother who, upon moving into a retirement complex/assisted-living facility after turning 90, matter-of-factly (but civilly) turned down an invitation from a well-meaning neighbor to participate in a Bible-study group. “I don’t have time,” she said, echoing the bridge shark quoted above.

What does this  mean for those of us still some distance from these scary points in our lives? Probably, blogging isn’t socially interactive enough.1  Luckily for me, I get plenty of social interaction before a captive audience: my students. After reading this article, it appears I’ll be best served by teaching until I fall down in front of the class, or at least until I start referring to Palsgraf v. Long Island R.R. as the case that established a woman’s right to choose.2 An advance apology is due the class of 2050.

After reading the article, I couldn’t help but think of poor Dick Cheney, now routinely  surfacing after many years in an undisclosed location from which he was somehow able to shred the Constitution. Given his serious health issues, perhaps his endless TV tour is based on his belief that the social interaction afforded by FOX News and the American Enterprise Institute will keep him going for another ten years. Uh…can we please make a present of bridge lessons for the former VP?

  1. Or is it? Does cyber-contact count? Discuss.
  2. For non-lawyers: Palsgraf is a strangely famous negligence case involving an explosion, a fallin scale, and a series of inscrutable aphorisms from the great New York jurist, Benjamin Cardozo. As everyone knows, the case that established the woman’s right to reproductive autonomy was Brown v. Board of Education.

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:

Agcorpse2

  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)