Monday, January 25, 2010


The United States is struggling with the issue of what to do with persons detained in the course of preventing attacks by Islamic terrorists. On the one hand, some people advocate a law enforcement model, replete with due process rights, counsel provided at public expense, right to remain silent, access to writs of habeas corpus, etc. Others find this model unnecessarily stringent, particularly in light of the threat that Islamic terrorists represent.

Before becoming too comfortable with a clear distinction between a law-enforcement and more conventional war model of the issue, it might be useful to recall that law enforcement officials machine-gunned Bonnie Parker and Clyde Barrow in an ambush designed for that purpose. John Dillinger was shot on the spot. In neither case were the deceased afforded the opportunity to plead special circumstances to a court of law or avail themselves of the favorable presumptions of the legal process. Others might recall the MOVE bombing in Philadelphia and the deaths of the Branch Davidians as a result of law enforcement actions gone awry. On the other hand American servicement have been prosecuted and convicted for violations of the laws and codes of war, despite the fact that collateral damage deaths and infliction of misery on non-combatants are accepted as inherent in the nature of warfare. The facile equation of "law enforcement model=protection of rights" and "enemy combatant model= violation of rights" is not validated by experience.

When someone is apprehended in the course of committing a terrorist act against the United States, we have a practical choice as to whether to treat that individual either as a criminal defendant, or as an agent of an ongoing terrorist enterprise, the treament of whom might influence the success of that enterprise. The latter course may involve indelicate treatment, and arouse charges of rejecting societal and cultural values, "becoming no better than the terrorists," in a convenient shorthand, while the former may provide legal sanctuary to information and intelligence beneficial to a continuing threat. The concept of threat is central to resolving this dilemma.

When the typical criminal is apprehended, it is often both reasonable and legitimate to presume that the threat posed by that criminal has abated. Harsh interrogation, for example, would serve only to assist the state in prosecuting the individual, with the attendant risks that the prosecution would be tainted by such interrogation. It is altogether reasonable to forego treatment that has the potential to wrongly secure an accused's contribution to his own conviction. If in fact the threat posed by a criminal enterprise is eliminated, or nearly so, by the apprehension and detention of an isolated suspect, then the social benefits of prosecuting with strict observance of due process outweigh those of using coercive methods to facilitate prosecution. If the purpose of interrogation is only to obtain information for the purpose of implicating the accused in a crime and thereby securing his conviction, and that is the only purpose, then strict observance of due process is proper.

However building a case for prosecution of the accused is not the only purpose of interrogation, and treatment of the detainee is not solely dictated by that interest. It sometimes occurs that capture and detention of a single person or group of persons does not in itself significantly diminish the threat posed by their activities. It is the threat that persists after apprehending the suspects that gives rise to the dilemma of how the captured should be treated. Popular culture presents the "ticking time bomb" scenario, but this is not only dismissed, but ridiculed as far-fetched and hysterical. Opponents of harsh interrogation or other tactics that fall short of Bill of Rights protections claim that some interrogation tactics consititute torture; so in an effort to begin an analysis from a reference of consensus, let us assume that torture is something that should be opposed.

If Jack Bauer provides too incredible a reach by which to ponder the issue, one can at least acknowledge that the names of Jessica Lumford and Polly Klass and Mary Vincent evoke an all to tragic reality. So assume a case where a child has been abducted, and there is reason to believe that child is subject to torture and murder. If police apprehend a suspected accomplice who may have information that would lead to ending the child's ordeal, it is a rather nuanced argument to hold that the child must suffer so that "the system" might pay homage to its due process principles. Even though the person in custody may no longer pose a personal threat, the fact is that the abducted child is still in peril, and a society that would accommodate the torture and murder of a child in favor of a fastidious criminal procedure can not be regarded as just or civilized, or indeed worthy of judging criminals.

Further, if we assume that a policeman happens upon the child's abductor in the process of harming the child, and the abductor does not respond to directives to stop, only a very malformed and intolerant conscience would hold that violence against the perpetrator would infringe his rights. Certainly, the policeman would be justified in defending innocent life by drilling the perpetrator through the head with a bullet, without regard the suspect's ex post facto opportunity to argue his right to harm the child. If the law is therefore justified in depriving a suspect of life to prevent the torture of a child, it confounds logic to hold that the law must forego the same result (preventing the torture and death of a child) by interrogating a person who is safely in custody in a manner that is concerned solely with fifth and sixth amendment jurisprudence. At most, society would have to accpt that information obtained from such interrogation could not be used in prosecutions that arise from the crime. But even then, if a child must suffer so that the law not be offended, then the law must fall.

The propriety of how accused person's are treated must consider basic human rights and human decency. It must respect the protections for the accused's rights and the precedents of our jurisprudence. But it must also accommodate those instances where threats remain, and cannot be subordinated to mindless adherence to detatched procedures at the cost of unnecessary innocent suffering. The whole point of having those procedures is of course to minimize the risk that innocent people will suffer within the criminal justice system. Adherence to procedural protocol is very laudable when a threat expires with detention of a particular suspect, but if the threat is known persist despite the accused being detained, a moral society will sometimes have to choose to eliminate such threat to innocents at the expense of other concerns. Given this, it is difficult to see how conferring criminal procedure rights on "enemy combatants," when the threat of which they are part persists after their capture, benefits any legitimate societal interest.

Friday, January 08, 2010

Why Is Healthcare So Expensive?

Why is healthcare so expensive? If you are a politician you instictively assume that it because of "greed, fraud, waste" of industry fatcats. If you are an industry fatcat, you assume that it is because of the irresponsibility of spoiled patients, churlish doctors and meddling bureaucrats. And then throw in tort lawyers, pharmaceutical companies, unions, demagogues, and various undefined predators. I submit that this is a pretty typical schematic of the assumptions underlying current healthcare reform legislation. What each of these assumptions has in common is some questionable motive on the part of someone. I submit that the cost of American healthcare is really more a result of more benign factors and expectations. In my opinion healthcare is expensive because of :

1.) Performance. As I have said befire, there is a reason why a Ferrari costs twenty times more than a Dodge Omni, and it is not because the Ferrari goes twenty times faster or farther. Marginal increments in high performance systems cost considerably more than proportional improvements in less ambitious systems. Excellence costs disproportionally more than adequacy, and Americans want and have been willing to pay for excellence.

2.) Access. If you need your knee replaced in a fair sized American city, you can go to the local medical center. Or you can go to a specialty hospital or to a surgical center. These options allow you to schedule your procedure within a reasonable time, and not subject to operative room availability that is subject to ruptured appendices, multi-trauma car accidents, dissecting aortas, or perforated bowels. This ready access requires a certain amount of redundancy and redundancy costs money.

3.) Uncertainty. Lets say you have chest pain. A skilled practitioner can take a low tech history and physical and tell you wiht ~85% certainty that you are not having a heart attack, and that he thinks the cause is esophageal spasm, or anxiety. The 15% uncertainty is unnerving, so you are willing to pay for cardiac enzymes that can tell with 95% certainty that you are not having a heart attack. But it's your heart we are talking about so you get parked in an observation unit, with telemetry monitoring, and because something caused the pain, you get a nuclear medicie study the next day. (The readiy availability of the nuclear medicine study also costs money as mentioned above.) But you still don't know what caused you to go the ER and you want to find out. You don't like uncertainty where your health is concerned. You get a specialized CT scan and if this doesn't answer the question you are scheduled for a swallowing study. If you are having headaches, how much are you willing to spend to be assured that they are due to tension and not a tumor or an aneurysm?

4.) Choice. Heaven forbid you are given a diagnosis of cancer. There are several treatment options, the cheapest of which is disfiguring, or disabling surgery. Or you can opt for one the newer radiation techniques, chemotherapy protocols, high tech reconstruction, or some high tech monoclonal antibody therapy. Maintining these options and the expertise to use them costs money, money that we americans have been willing to spend in the private insurance market, until our politicians told us that we aren't.

5.) Autonomy. There is no one other than the patient who can tell us how important the last month of his life is to him. There is no reliable way of telling that the three months he spends at home with his daughter is less meaningful than the three months that a motorcycle crash victim spends in inpatient and outpatient rehabilitiation. The lifestyle and healthcare choices of individual people are matters of liberty and individual dignity, not actuarial variables to be guessed at by remote bureaucrats. It is much cheaper for treatment decisions to be made by venal accountants, it is much more meaningful for these same decisions to be made by unique and irreplaceable people.

6.) Fantasy. We all engage in illusions that are comforting, or that provide emotional reassurance, even if we know these illusions are contrary to reality. We assume that the natural condition of mankind is to die at home in his bed surrounded by loved ones, of old age. We want to think that our doctors will succeed in whatever therapeutic interventions they try, regardless of reason, and if the outcome is less than expected, a jury will be asked to right the wrong. We want to pretend that the 87 year old who just had a massive stroke will get back on her feet "because she's always been active" as soon as she is able to eat, and as a consequence we are willing to spend significant money for what may be a one-in-a-hundred shot. We do this, not because we are greedy or stupid, but because we look at our loved ones a certain way. It may be, in the case of healthcare, that these are futile expenditures, but the underlying presumption, that human life is never an ordinary thing permeates all that we do and all that we value as a society. The money we spend on fantastic healthcare ambitions is simply a consequence of our values.

7.) Responsiveness. Ambulances and emergency rooms respond to everyone who has a medical emergency based only on the fact that the patient is a human being. It requires infrastructure to ensure 24-hour coverage, aerial transport if necessary, and tertiary care centers when needed. Again, we American have been willing to pay for this until our enlightened politicians tell us that we aren't. The simple fact is that government provided healthcare cannot keep up with the private healthcare system in providing Americans with the attributes described above. So they tell us the government must take over and by fiat and diktat deprive us of many of the qualities of our healthcare system that we have already indicated are important to us. The reason, after all that Obama says we need to reform healthcare is not because it costs too much (it doesn't "Consume" 17% of GDP, it produces it) it is because the government is not very good at providing it.