Ethics Newsline®

The pending war with Iraq is widely seen as a moral issue. That fact may seem obvious. But consider that, only a few weeks ago, the debate was being framed mostly as a matter not of ethics but of politics, diplomacy, economics, or military strategy.

The arguments have now shifted. As always, those favoring immediate invasion and those wanting more time for inspections are both claiming the moral high ground. What’s changed is the importance of that debate. As the rhetoric has ratcheted up, each side increasingly views the moral discussion as central. From being one among many arguments, it is fast becoming the sole argument.

In practice, that means that the pro-invasion side stands accused not simply of being impolitic, rash, or arrogant; they are seen as frankly unethical in their drive toward aggression. Similarly, the pro-inspections side is derided not just for peacenik idealism or economic self-interest; it is condemned for an immoral refusal to stand up against evil.

With passions running this high, it’s worth asking what “moral high ground” means, why it matters, and how one gets it and keeps it.

Moral decisions are all about ought. This verbal auxiliary is derived from words meaning “be obliged to” or “owe.” When we ask whether we ought to do something, we’re asking what action or commitment we owe to ourselves or others.

Ought sets a different standard from want. There are lots of things that, however much we want to do them, we refrain from doing because we have an obligation to not do them. So, it is argued, however much the Bush administration wants to put Saddam Hussein in his place, the moral high ground is to resist those wants. The counterargument also operates: However much nations may long to live in a world without aggressive intervention, we have a moral obligation to protect the world from danger when we can.

Ought is also different from must (which is the realm of the required), or can (the realm of the possible), or may (the realm of the permissible). The current discussion is not about what the Bush administration can do: No one doubts its ability to wage war. Nor is the discussion about what the administration is required or permitted to do. No one doubts its intention to go to war, if necessary, without United Nations permission and even in the face of challenges under international law. But ought it to do so? That’s the debate.

Nor is this simply a discussion about “just war” theory. That body of philosophy determines the boundary conditions for good and bad wars, in terms of both the causes for war and the conduct of the fighting itself. It includes such concepts as proportional response (don’t nuke a nation that merely fired a pistol at one of your ships) and the obligation to minimize harm to noncombatants. Stray outside those boundaries, and you’ll be caught doing immoral acts.

But boundaries typically tell you only what you shouldn’t do. They give you little guidance about what you should do within the circle. In the case of a war with Iraq, the problem is that neither side can say for sure what lies within that circle. The pro-invaders believe that without quick military action, horrendous weapons will be given to terrorists to perpetrate crimes far worse than 9/11. The pro-inspectors believe that by containing Saddam and pressing him to disarm, his capacity to aid terrorism will be essentially neutralized. Which side accurately portrays the global future? Just war theory could help us if the answers were clear. But they aren’t.

One thing is clear, however. We tend to attribute the moral high ground to those we regard as morally sound actors. Because few believe Saddam is such an actor, few are swayed by his assertions that right is on his side. By contrast, in order to credit the Bush administration’s claim to the moral high ground, the world needs to believe that the United States expresses broad moral clarity — not just in its dealings with Iraq, but in general.

It’s right here that the administration is vulnerable. Those who want to undercut its moral standing can point to a litany of evidence — opposition to the International Criminal Court, diluting of global environmental policies, detention of terrorists suspects, increased surveillance of citizens under the Patriot Act — that they can construe to suggest a falling moral barometer. They can then add broader critiques of the United States — widely viewed as a drug-and-gun culture that still practices the death penalty. Finally, they can point to disturbing trends in the news: a culture of apparently unpunished sexual aggression at the Air Force Academy, self-dealing and deception at the United States Olympic Committee, cover-up and duplicity in the Catholic Church, and corporate greed that, just last week, has resulted in indictments of top executives at Qwest.

Whether this analysis is accurate can be strongly debated, but that’s not the point. In today’s rhetorically charged atmosphere, these charges matter. They provide too easy a way for critics of the Bush administration to broaden their attack until it becomes a condemnation of the United States itself and of Americans in general.

Whichever side prevails in the current debate, a clear signal is being sent: While the United States retains its moral standing in many areas, it can no longer take that standing for granted. To claim the high ground on the big global matters, it needs to attend — and be seen attending — to its standing on the smaller domestic matters. It ought not to be this easy for critics of the United States to find fodder for their arguments.

(c)2003 Institute for Global Ethics

“Some have recently suggested that well-known individuals who express ‘unacceptable’ views should be punished by losing their right to work. Even a hint of the blacklist must never again be tolerated in this nation.”

– From a statement posted last week on the Web site of the U.S. Screen Actors Guild, which said some actors who have taken a public stand against a U.S.-led war on Iraq have faced censure and possible loss of work because of their views. Hollywood, the AP notes, was badly damaged in the 1950s by the government-led blacklisting of actors, directors, and others accused of supporting communism. (“Actors Guild Warns Against Blacklisting,” AP, Mar. 4.)

NEW YORK
Unfolding ethics scandals, backed by threats of civil and criminal action, unseated four senior executives last week at institutions ranging from Credit Suisse First Boston (CSFB) to the U.S. Olympic Committee.

In New York, high-flying CSFB banker Frank Quattrone, rumored to have enjoyed an annual income of $100 million annually during the recent bull market, resigned to concentrate on his defense against allegations of destroying documents to obstruct a government investigation.

Quattrone, who denies any wrongdoing, has been accused of telling employees to destroy files related to an IPO under investigation, and refused to provide testimony related to the inquiry, reported the Washington Post.

The North American Securities Dealers, the industry’s self-regulating body, said it plans to file civil charges against Quattrone, who could also be barred from the securities industry, according to the Post.

Also last week, U.S. credit card company Capital One said its chief financial officer, David Willey, had resigned after being notified of impending civil charges to be filed by the federal government.

The U.S. Securities and Exchange Commission (SEC) says it suspects Willey of using privileged information to engineer some insider trades in May 2002, two months before the company revealed some bad news.

Last week’s SEC notice, which alleges that Willey “traded in the company’s stock while in possession of material non-public information,” gives the former CFO a chance to respond before legal action is filed, reported the Associated Press.

And last week in Colorado Springs, the ongoing ethics scandal at the U.S. Olympic Committee (USOC) claimed the post of embattled chief executive Lloyd Ward, who has been in the hot seat since last December for allegedly using his clout to try to win contracts for his brother’s firm.

After the USOC ethics committee largely cleared Ward of the charges, six USOC executives quit in protest. Last month, USOC president Marty Mankamyer also stepped down over infighting surrounding the scandal.

After U.S. senators Ted Stevens (R-Alaska) and Ben Nighthorse Campbell (R-Colo.) said they had found evidence of possible criminal activities by USOC executives, Ward resigned, though he did not admit any wrongdoing.

Ward’s right-hand man, USOC chief operating officer Fred Wohlschlaeger, also stepped down last week after negotiating a secret severance agreement with the USOC.

Wohlschlaeger’s departure was welcomed by Sen. Campbell, who last week called for a “clean slate” at the top of the USOC, reported the Denver Post.

The USOC is now under congressional inquiry.

SEOUL
South Korea last week announced an investigation into the behavior of six of the country’s largest business groups, or “chaebol,” saying there were signs they had illegally manipulated stock deals in order to amass more power.

The chaebol — tight-knit groups of companies frequently overseen by a family dynasty — are suspected of using abusive practices to consolidate their power, including stock price manipulation and insider dealing.

Firms named in last week’s announcement include LK, Samsung, SK, and the three groups that formerly constituted the powerful Hyundai conglomerate.

Though a leading engine of the nation’s economy, the chaebols’ excessive clout and self-interest are also widely blamed for hampering South Korea’s ability to cope with the Asian financial crisis of the late 1990s, reported the BBC.

The government’s Fair Trade Commission will investigate stock trades and questionable transactions from January 2000 to December 2002, according to the New York Times.

WASHINGTON
A sharply divided U.S. Supreme Court last week upheld California’s tough “three strikes” law, backing a prison sentence of 50 years with no chance of parole for a man convicted of stealing nine videotapes worth $150.

The court’s rulings cover two cases, both decided by the same 5-to-4 split, debating the fairness of prison terms meted out under the nation’s harshest three-strikes law, which is intended to curb recidivism.

Passed by both California’s state legislature and a public referendum in 1994, the law requires a minimum 25-year sentence without parole for anyone convicted of three felonies, reported the New York Times.

Last week’s cases involved Gary Ewing, who was sentenced to 25 years without parole after stealing three golf clubs, and Leandro Andrade, who stole nine children’s videotapes to finance his heroin addiction.

Those crimes are normally misdemeanors, but the California law allows prosecutors to try third strikes as felonies. In these cases, both men were convicted and then sentenced under the three-strikes law, according to the Times.

Both plaintiffs appealed those sentences to the Supreme Court, arguing that the severity of the punishments should be considered “cruel and unusual,” violating the Constitution’s Eighth Amendment.

Last week, the court’s conservative majority rejected those appeals, saying the states — not the court — had the right to decide what constitutes fair criminal sentencing policies.

“We do not sit as a ’superlegislature’ to second-guess these policy choices,” Justice Sandra Day O’Connor wrote for the majority. “Though three-strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding,” she wrote.

A concurring opinion by justices Antonin Scalia and Clarence Thomas said the court had no basis for deciding when the length of a prison term crossed the line into cruel and unusual territory.

In a sharp dissent pointedly read aloud to the court, Justice David Souter criticized the court’s reasoning, noting that other states’ three-strikes laws require the third strike to be violent or a serious felony. Justice Souter also noted that Ewing could have been sentenced to no more than 10 years in 33 states, and only 12 to 18 months under federal guidelines, reported the Times.

Andrade, 37, who stole nine videotapes in two incidents, was given two 25-year terms without parole, confining him to prison until age 87.

“If Andrade’s sentence is not grossly disproportionate, the principle has no meaning,” Justice Souter said.

Erwinn Chemerinsky, a law professor at the University of Southern California who argued for Ewing and Andrade, said last week’s ruling will make it nearly impossible for future cases to test the appropriateness of punishments handed out under states’ three-strikes laws.

The Supreme Court’s decision that these particular “sentences don’t violate the [Constitution] makes it harder to imagine any case in which the court is going to find a sentence grossly disproportionate,” Chemerinsky told the Washington Post.

WASHINGTON
The U.S. Supreme Court last week issued rulings upholding key principles of the nation’s sex-offender laws, throwing out challenges accusing Alaska and Connecticut of violating privacy and constitutional rights.

The decisions came in the first Supreme Court challenges of so-called Megan’s laws, named after a 7-year-old New Jersey girl who was killed by a sex offender in 1994.

Alaska’s version of the law requires anyone convicted of a sex offense or child kidnapping to report to a government office four times a year for at least 15 years, providing a current picture, license plate number, and address information.

Alaska, which passed its law in 1994, applied the measure retroactively.

Alaskan plaintiffs convicted before 1994 reacted by suing the state, contending they were being punished a second time for their crimes by being forced to comply with the later law’s reporting requirements, violating the constitutional ban on “double jeopardy,” reported the New York Times.

Last week, the court rejected their argument by a 6-to-3 vote, saying the stringent reporting requirements were intended as a reasonable public protection, not a second punishment — even if the latter was an inevitable derivative.

“Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objection as punishment,” Justice Anthony Kennedy wrote for the majority. “The purpose and the principal affect of notification are to inform the public for its own safety, not to humiliate the offender.”

Justice Ruth Bader Ginsburg was among the court’s three dissenters, concluding that “however plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation.”

In a separate ruling, the court unanimously refused to give sex offenders living in Connecticut the right to a hearing before having their information posted on the Internet.

Plaintiffs complained that the Connecticut law effectively branded them even when rehabilitated, amounting to a public shaming that failed to discriminate between those who still pose a threat and those who do not — a violation of due process.

They argued that they had the right to a state hearing before being “publicly branded” by the Connecticut authorities, noted the Times.

Chief Justice William Rehnquist rejected that argument, noting that Connecticut’s online site explicitly states that sex offenders “are included solely by virtue of their conviction record” — not by any assessment of possible danger posed to the public.

Essentially, the state “has made no determination that any individual included in the registry is currently dangerous,” Rehnquist wrote, noting that “due process does not require the opportunity to prove a fact that is not material to the state’s statutory scheme.”

WASHINGTON
U.S. companies hoping to keep competitors from using knockoffs of their famous names must do more than simply prove that consumers link the competitor with the real thing: They must prove that such a link actually damages the original, the Supreme Court ruled last week in a slight setback to lingerie retailer Victoria’s Secret.

The unanimous decision sends the case of Victoria’s Secret vs. Victor’s Little Secret, a tiny adult-novelty shop in Kentucky, back to a lower appeals court, which must decide if such damage has taken place.

The ruling was the court’s first attempt at resolving disputes centered on the federal Trademark Dilution Act of 1995, which was created by Congress to protect companies’ lucrative brand names.

In last week’s case, Victoria’s Secret complained that the Kentucky adult store, which sold “tawdry” gag gifts, sex toys, and underwear, was a rip-off of the prominent national firm’s name that hurt its brand value.

After winning two rounds in the lower courts, Victoria’s Secret lost its case before the Supreme Court, which said that a mental linking of the two firms by consumers was not enough to prove trademark harm.

Instead, Victoria’s Secret must prove that the small shop’s similar name, even if seen in a poor light by consumers, also reflected badly on the national chain, diluting its trademark. the court said.

The court further raised the bar by saying actual measured damage — not likely or suspected damage — must be shown under the terms of the federal law, reported the New York Times.

“The mere fact that consumers mentally associate the junior user’s mark with a famous mark is not sufficient,” Justice John Paul Stevens wrote for the court. “This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution.”

The court declined, however, to clarify how Victoria’s Secret could prove actual trademark damage, leaving that complicated discussion for the lower courts and companies.

Victoria’s Secret complained that obtaining such proof, most likely through consumer surveys and expert industry analysis, would be burdensomely expensive — an argument for which the court displayed little sympathy, noted the Associated Press.

“Whatever difficulties of proof may be entailed, they are not an acceptable reason for dispensing with proof of an essential element” of U.S. trademark law, the court concluded.

PITTSBURGH
The state of Pennsylvania should put a moratorium on the death penalty until it can study the effects of race on death-penalty sentences, a special committee appointed by the state’s Supreme Court recommended last week.

The committee, assigned to review a wide range of gender, race, and other possible biases in the state’s judicial system, released its 550-page report last week, reported the Associated Press.

Of Pennsylvania’s 245 death-row prisoners, 61 percent are black, while only 10 percent of the state’s population is black — a skewed ratio that is cause for concern, the report warns.

The study’s authors said that while prosecutors may continue to seek the death penalty in court, Gov. Ed Rendell, who supports the death penalty, and the state’s legislature should block executions until further study is done. Rendell did not immediately respond to the report.

A similar position had been adopted by Maryland until January, when incoming Gov. Robert Ehrlich lifted a moratorium imposed by his predecessor, noted the AP.

WASHINGTON
The U.S. military is asking Congress for broad exemptions from many of the nation’s key environmental laws, insisting it needs more leeway from such oversight to remain ready for war.

The request was made by the White House in proposed changes to the 2004 defense authorization bill, which is scheduled for hearings this week, reported the Washington Post.

Last year, the Defense Department floated a stripped-down version of the proposed changes, but was rebuffed by the Senate. Now, with a looming war against Iraq, the Pentagon has expanded its request and returned to Congress.

The proposed changes would exempt the military from provisions of the Clean Air Act, the Endangered Species Act, the Superfund law, the Resource Conservation and Recovery Act, and the Marine Mammal Protection Act.

The Pentagon says the exemptions would strike a “common sense” balance between military preparation and environmental protection, which the military complains is too stringent. Among other claims, military brass contend that some wildlife-protection laws hinder undersea bombing exercises as well as training with off-road vehicles on military land.

That assessment contrasts with a recent congressional study by the General Accounting Office, which concluded last June that military readiness “remains high for most units” under current environmental laws.

Environmental Protection Agency head Christine Todd Whitman last week told the Senate she does not “believe that there is a training mission anywhere in the country that is being held up or not taking place because of environmental protection regulation.”

The discrepancy between Pentagon assertions and congressional evaluations has led some lawmakers to question whether the administration is using wartime excuses to gut laws it has long found irritating — a view the Pentagon rejects.

Special to Newsline from Canadian correspondent Errol P. Mendes

OTTAWA
There are growing calls for stern reprimands for a Canadian member of Parliament (MP), Carolyn Parrish, who was overhead by media representatives in the Canadian Parliament to state, “Damn Americans, I hate those bastards.”

Opposition MPs and even her own Liberal colleagues in Parliament are calling on MPs to defeat her reelection bid to head the Canadian Parliament’s NATO Association, which interacts with members of the U.S. Congress on NATO matters.

Ms. Parrish has twice apologized for her comments but has also added that she was really aiming her comments at the Bush administration, not the U.S. people, and might make similar comments again according to a report in the Globe & Mail.

She is also one of the most vocal critics in Parliament of the U.S.-threatened military action in Iraq.

The Canadian Chamber of Commerce has asked Canadian prime minister Jean Chrétien to reprimand her officially in order to prevent a deterioration of the economically vital Canada-U.S. relationship.

LONDON
Deloitte & Touche last week announced that it would no longer audit the books of a U.K. animal testing lab, following months of protests and harassment by animal-rights activists who targeted the auditor’s directors and staff.

“Having completed the audit for 2002, we will not be offering ourselves for reelection as auditors to Huntingdon Life Sciences” (HLS), Deloitte & Touche senior partner John Connolly said in a statement.

Deloitte & Touche is the latest firm to withdraw its services from HLS, a firm that performs a wide range of pharmaceutical and other testing on animals, drawing heavy fire from animal rights groups in the process.

Harried by protestors, HLS has de-listed itself from the London Stock Exchange and moved its headquarters to the United States, but has refused to close its doors as demanded by protestors, reported the Reuters news agency.

In response, activists have turned their attention to the firms that help HLS stay in business.

Two years ago, under pressure from protestors, the Royal Bank of Scotland backed out of a loan to HLS, forcing a government bailout of the firm. In December, the government again stepped in after the lab’s insurance broker declined to continue covering HLS.

Last week’s action followed a similar push by activists who started taking their protests to the homes of Deloitte & Touche employees, vandalizing their property, and jamming their email and cell phones, reported the Reuters news agency.

The action has sparked widespread criticism of the activists’ approach, with the Association of the British Pharmaceutical Industry calling for new legislation to “protect people and companies from the often violent and extreme activities” of some activists.

OMAHA, Nebraska
The ethics of providing organ transplants for convicted prisoners is being revived with the case of a Nebraska woman in prison for murder and in need of a new liver, the Associated Press reported last week.

Carolyn “Mama” Joy, jailed for murdering another prostitute in 1983, was recently evaluated by doctors for a possible liver transplant, necessitated by damage from years of heroin and alcohol abuse when she was younger.

Sober and drug-free for nearly 20 years, Joy said she understands the concern over whether she should be eligible for a donated organ — a debate she has with herself, she told the AP.

While such concerns have been raised in complaints to the Nebraska Health System in Omaha, where Joy would get the transplant, the dominant complaint is that taxpayers would be required to pay for the operation and follow-up treatment as stipulated by federal law.

But ethicists say such debates are a matter of public policy, not medical ethics.

“Whether or not she’s a prisoner or not does not enter the equation,” Dr. Alan Langnas, head of transplant surgery at the University of Nebraska Medical Center, told the AP. “Ethically as a physician, it’s our responsibility to be advocates for whatever patients we are treating.”

Dr. Lainie Friedman Ross with the MacLean Center for Clinical Medical Ethics at the University of Chicago, echoed that belief in an interview with the AP.

“I’m a workaholic, and when I get my first heart attack, I’ll say I’ve earned it but no one will keep me off a list for that,” Ross said. “We don’t blame the workaholic but we blame the alcoholic…. Yeah, she belongs on the list like I belong on the list.”

For her part, Joy says she feels conflicted about balancing her desire to live with the knowledge that others — 118 Nebraskans and 17,300 people nationwide — also are waiting for a liver transplant.

Saying she has not yet decided whether or not to ask for the transplant even if she is medically approved for the waiting list, Joy admitted to the AP, “I want a chance just like they do.”

A similar debate over medical ethics was raised in California last year, when a convicted robber received a heart transplant at taxpayers’ expense. The 32-year-old man died 11 months later.

From Harris Interactive:

“Recent results of The Wall Street Journal Online/Harris Interactive® Health-Care Poll showed that more than half (58 percent) of adults in America favor new legislation to limit the costs of medical liability and reduce the costs of medical malpractice insurance. Only 16 percent of the public would oppose such a limitation, while a full 25 percent of those surveyed said they ‘dont know.’

“Some key findings of the poll, which measured the publics opinion about medical malpractice reform, are:

• “Only 16 percent of those surveyed said they would oppose new legislation to limit the costs of medical liability and reduce the costs of medical malpractice insurance, while three times that number (58 percent) would favor it. A full 25 percent said they ‘dont know.’
• “Two-thirds (66 percent) of adults think that malpractice claims are brought against doctors when there has been no malpractice ‘very often’ (26 percent) or ’somewhat often’ (40 percent).
• “59 percent feel that malpractice suits against doctors and their fear of being sued harms the quality of care to patients.
• “Half (48 percent) favor a cap on malpractice liability damages while a quarter (26 percent) opposes it, and 25 percent said they dont know.
• “62 percent favor having medical malpractice cases tried in special courts presided over by medical professionals and other experts to review and decide injury cases while only 17 percent oppose, and 21 percent dont know.

“…These survey data seem to indicate that older people favor reform — 75 percent of those aged 55 years and over favor reform — compared with only 46 percent of those aged 18 to 24 years. Almost twice as many women (33 percent) as men (17 percent) said they ‘dont know’ if they favor or oppose new legislation to limit the costs of medical liability and reduce the costs of medical malpractice insurance. Also, twice as many African Americans (34 percent) said they oppose legislation compared to Hispanics (17 percent) and whites (15 percent)….”

“Honest differences of views and honest debate are not disunity. They are the vital process of policymaking among free men.”

– Herbert Hoover (31st U.S. president, 1874-1964)