Monday, November 16, 2009

Hasan and the Obligation to Intervene

November 16, 2009, 6:00 a.m.

Major Hasan: A Case Study in Responsibility
(brought to you by*)

As everyone in the world with access to the media has been informed, "[Army] Major [Nidal Malik] Hasan, 39, an Army psychiatrist . . ., is accused of opening fire with a pistol on Nov. 5 at a Fort Hood center where . . . he shot to death four commissioned officers, eight enlisted soldiers and one civilian in the crowded center [and] twenty-nine other people were wounded . . .." James C. McKinley Jr., "Major Held in Fort Hood Rampage Is Charged With 13 Counts of Murder," New York Times, November 13, 2009, p. A14. And see, James C. McKinley Jr. and James Dao, "Fort Hood Gunman Gave Signals Before His Rampage," New York Times, November 9, 2009, p. A1.

Among the dozens of potential issues raised by this case is one that I've begun hoping an interdisciplinary group will write a book about (or someone will tell me they already have). Today's blog entry will begin that inquiry, . . .
. . . but first, here are links to earlier entries on some of the other hot topics from the past week or so that are now getting the most direct hits, among which may be the entries you are looking for:

School boundaries, school boards, and the ICCSD.
"School Board Election: Now Work Begins; It's Swisher, Dorau, Cooper; Old Board 'Starting Off Backing Up' With Consultant and Tough Decisions," September 9, 2009, 7:00 a.m. (with its links to 11 prior and related blog entries including, for example, "School Boundaries Consultant Folly; Tough Boundary Questions Are for Board, Not Consultants or Superintendent, Plus: What Consultant Could Do," and "Cluster Schools: Potential for IC District?")

Nicholas Johnson, "School Board Has Work to Do," Iowa City Press-Citizen, November 2, 2009 (and reproduced in blog)

"Boundaries: Only Board Can Do Board's Job; Drawing School Boundaries Made Easy," November 2, 2009

UIHC, Regents and UI.
Strategic Communications VP position: "Strategic Communications a Failed Strategy; Actions Speak Louder," November 13, 2009

Executives trip to Disney World: "Mickey Mouse Patient Satisfaction; UIHC's Troubles: Is Orlando the Answer?" November 8, 2009

"Contributions from patients" proposal: "UIHC: 'Sick Brother, Can You Spare a Dime?'; A Check-In and a Check," October 31, 2009, 7:00 a.m. (with numerous updates through November 4, links to additional, related material -- and now with over 30 of the Press-Citizen readers' comments on B.A. Morelli's stories)

Board of Regents and State universities' budget cutting: "Cutting Slack, Cutting Budgets; Regents, University Presidents, Deserve Some Thanks and Credit," October 30, 2009, 8:30 a.m. (with links to prior, related blog entries)

Spence break-in grand jury proceedings: "UI Spence Break-In: Gazette Scoop Illustrates Issues," October 27, 2009
The issue, most broadly stated, is: If one has a suspicion, or concern, that another may pose a risk of physical harm to others, what are the conditions under which (a) one has an obligation to report that concern to others, (b) one may report it, but need not, or (c) must not report it?

As phrased, it is intended to suggest that Major Hasan's case, while more than a mere "news peg," is but one illustrative case study from among probably hundreds that would be required for the inquiry I have in mind. It is, however, the case that has sparked my curiosity; thankfully a curiosity that is not the product of personal past or present needs to confront the intervention dilemma.

And since the Hasan case is the one that's most forcefully on our minds at this time, and one for which the President has called for a related inquiry, let's explore it in a little more detail in an effort to put some specific meat on this issue's otherwise somewhat general and disconnected, dry philosophical bones.

Here are excerpts from a story describing President Obama's inquiry:
President Barack Obama has ordered a high-level review of how U.S. officials handled warning signs that might have pointed to the eventual killing spree at Fort Hood, Texas . . ..

Obama ordered John Brennan, his adviser on homeland security and counterterrorism, to find out what various federal agencies knew about Hasan, how they treated the information and whether they shared it with other agencies. . . .

Among the possible warning signs that the media have discovered since the shootings:

-Hasan had contact with a radical Muslim cleric who's suspected of a connection to 9-11 and thought to be an influence in other terrorist attacks.

-Hasan may have expressed favorable views of suicide bombings. A Web site in May featured a post under the name "NidalHasan" that likened Muslim suicide bombers to solders who throw themselves on hand grenades to save their comrades. Both, the writer said, sacrifice "for a more noble cause."

-Hasan said in 2007 that Muslim soldiers should be excused from fighting in Afghanistan and Iraq because they'd be fighting fellow Muslims, according to The Washington Post. "It's getting harder and harder for Muslims in the service to morally justify being in a military that seems constantly engaged against fellow Muslims," he said.

-His views alarmed fellow doctors at the Walter Reed Army Medical Center, and they questioned as early as last year whether he was psychotic, according to National Public Radio. They expressed misgivings about his "extremist Islamic views," and he was reprimanded for telling one patient that "Islam can save your soul."

Rep. Michael McCaul of Texas [has asserted that] "there were communications and wire transfers made to Pakistan." . . .

U.S. government agents knew that Hasan had exchanged 10 to 20 e-mails starting last December with Awlaki, a New Mexico-born Muslim cleric who grew up in Yemen and was linked in the 9-11 Commission's final report to at least two of the 2001 hijackers. . . .

Lacking any clear threatening language, officials didn't pursue an investigation.

The FBI . . . had "reviewed certain communications between Major Hasan and . . . [Awlaki] and assessed that the content of those communications was consistent with research being conducted by Major Hasan . . .. [T]he JTTF (Joint Terrorism Task Force) concluded that Major Hasan was not involved in terrorist activities or terrorist planning."
Steven Thomma and Leila Fadel, "Obama orders inquiry into handling of Hasan intelligence," AP/McClatchy Newspapers/Miami Herald, November 12, 2009.

There are a number of aspects of this case that, while interesting, are outside the scope of the issue at hand: (1) The President is, necessarily, concerned about the ability of federal agencies to better share information in the cause of protecting the country and its citizens. As the story notes, "The failure to share intelligence was singled out as a factor that allowed the Sept. 11, 2001, terrorist attacks to occur." (2) There are reports of great heroism by those who were subject to Major Hasan's attack on November 5: taking fire while attempting to save others, their immediate provision of treatment for the wounded, and so forth.

How government agencies communicate within and among each other, or how individuals react in the midst of a subject's actual attack on third parties (as distinguished from the warning signs that such might occur), are beyond the scope of the inquiry -- as are the ultimate judgments that investigators may come to with regard to the assessment of blame, or innocence, among those who perhaps could have done more that might have prevented this tragedy.

Nor, for these purposes, am I focused on the obligation to prevent individuals from engaging in behavior that is only potentially harmful to themselves, or their doing harm to others that is something other than physical (e.g., hurt feelings, fraud or property damage).

What I'm interested in exploring -- or better yet, others exploring -- are the variety of contexts in which an "obligation to intervene" may arise because of the possibility of physical harm to another, the variety of standards that are applied, and the range of issues that the decision may present. Are there universal, or "neutral principles," that apply across this variety of contexts, standards and issues, or are there different answers for different contexts -- or perhaps not even contextual standards, but a chaos of answers as the most appropriate decision in each case is that "it depends," depends that is on the specific facts?

Here are some examples of contexts and issues -- all off the top of my head; none of which have yet been subjected to even superficial research.

Behavioral standards and constraints. When one thinks of obligations "the law" comes first to mind (especially if one is a lawyer!). But when the full range of the standards and constraints that mold human behavior are considered, law and regulations are but a relatively small sub-set. There are religious doctrines and teachings. There are moral and ethical standards apart from religion. There are philosophical inquiries. There is what we used to call "etiquette," and might be thought of as social mores, tradition or custom. And as the anthropologists remind us, there are various combinations and permutations of all of the above that can be found among various indigenous peoples and other cultures (e.g., compare the behavior in a small Iowa or Japanese farming community with that of wealthy executives in Tokyo or lower Manhattan). Each of these sources of behavioral constraints may have something to contribute to an inquiry into the "obligation to intervene."

The balance: privacy vs. protection. As with so much of law and life, when, where and why an "obligation to intervene" may exist will require a balancing of a number of interests. Clearly, society in general and the intervenor in particular want to avoid third-party-inflicted physical harm to others when possible. On the other hand, both also have an interest in maintaining all individuals' presumption of innocence, privacy interests, and reputations -- all of which are harmed by false charges or even suspicions. How are we to balance "Am I my brother's keeper" with "mind your own business"?

As an example of the harm that can be done to someone wrongfully accused (notwithstanding, perhaps, the best of intentions by the accuser), the Register editorialized yesterday about a case in which "the judge reversed and 'found to be incorrect' a social worker's finding that [a man] sexually abused a 15-year-old boy. His name was removed from the abuse registry. But not before he spent 393 days on it. Not before he lost his job in human services. Not before he lost his license to be a foster parent. Not before he cashed out his retirement savings and declared bankruptcy. Though the 31-year-old Iowan had spent his adult life working with kids - in shelters and residential treatment facilities and as a school liaison officer - being on the registry prevented him from getting another job working in these fields." Editorial, "A Year Shattered by Sex Abuse Allegations," Des Moines Register, November 15, 2009; Andie Dominick, "Protecting kids crucial, but accused deserve fair hearing," Des Moines Register, November 15, 2009.

International law. Does the Universal Declaration of Human Rights have anything to contribute to this inquiry? What about "preemptive wars" (such as our second Iraq invasion) or "preemptive strikes"? Are there published, or at least rational, standards for the process by which one nation (nation 1) can legitimately take action against another (nation 2) to prevent nation 2 taking action against either nation 1 or nation 3? (The UN Charter, ch. 7, art. 51, merely provides that, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations . . ..")

Arrest. How are police officers instructed with regard to, in effect, "preventive arrest"? When can they intervene to prevent what they believe will be imminent physical harm, when must they wait for the harm to occur before making an arrest, and what are the standards they use for making those distinctions?

Prosecutors, Grand Juries, and Trials. There are standards governing the judgments made by prosecutors, grand juries, trial judges and juries, such as "beyond a reasonable doubt," or "preponderance of the evidence," standards governing when a "suspect" can be prosecuted, or ultimately found guilty. For the question of whether a prosecutor may be liable in damages for exceeding prosecutorial discretion, see McGhee v. Pottawattamie County, 547 F.3d 922, 927 (8th Cir. 2008), argued before the U.S. Supreme Court as Pottawattamie County, IA v. McGhee on November 4, 2009 ("prosecutor allegedly (1) violated a criminal defendant’s 'substantive due process' rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial."); William Petroski, "Court reviews Iowa prosecutors' immunity," Des Moines Register, November 5, 2009.

Mandatory reporting. Teachers, at least K-12, are "mandatory reporters" of physically abused children. How do the relevant law and regulations articulate the standards, or process, they are to use in evaluating what they perceive and deciding whether to report it? What are the penalties for a failure to report?

Bartenders' burden. "Dramshop Acts," as they were originally called, impose on bar owners, and bartenders, legal liability for the subsequent harm done by customers who were served additional alcohol when they were already obviously dangerously drunk. Are there standards for making these judgments?

Involuntary commitment. There are circumstances under which an individual can be commited against their will to a mental hospital if there is a risk of their doing harm to themselves or others. What stardards are used by those responsible for making these judgments -- or by reviewing authorities when those judgments are questioned?

Preventive detention. Aside from involuntary commitment, what are the standards by which someone can be judged to be such a risk to society that they can be confined -- either beyond the term for which they were incarcerated for purposes of punishment for a crime, or without ever having engaged, yet, in a violent act against another? The "precrime police" of the feature film, "Minority Report," fictionalized the extreme of this approach.

Professional privilege. Doctors (including psychiatrists), lawyers, religious advisors -- and to a lesser extent journalists -- have a privilege of confidentiality that is recognized by the courts in some instances when such professionals would otherwise be required to testify as to what they know as a result of counselling sessions. But their legal right to refuse to testify about, and their ethical obligation to refrain from otherwise disclosing, such information is modified in some situations in which they are aware of imminent harm to another. For example, a client may ask a lawyer what defenses will be available when the client murders his wife, or a patient may explain to his psychiatrist his preparations to kill someone.

Religion and philosophy. Is there anything in Catholic doctrine, Jewish -- or especially Muslim -- teaching of relevance? For example, might "the Golden Rule" suggest that you should intervene if, were you the one at risk of physical harm from a third party, you would want someone to intervene on your behalf? What can be found in the thinking and writing of the world's great philosophers; for example, Kant's "categorical imperative," with his First, Second and Third Maxims, and how he distinguishes his approach from religion's "golden rule." Immanuel Kant, Groundwork of the Metaphysics of Morals (1785)?

Community standards. The nine categories just listed, and others that could be imagined or identified, mostly involve the legal or ethical standards applied to various professions as a matter of law or regulation. What is perhaps even more complex are the standards implicitly agreed to, though not articulated or embodied in formal documents, regarding (a) required, (b) acceptable, and (c) unacceptable interventions -- especially when it involves intra-family behavior. When are small boys' play with firecrackers and small explosives, or cruelty to animals, something of such concern that the community tends to agree that the neighbor who notices really should say something to parents, other neighbors, or authorities? What of the next door neighbor who goes out into the backyard, in a drunken condition, and fires off a rifle or shotgun -- though he's never been known to kill anyone? When is an overheard "I'd like to kill that SOB" transformed from hyperbolic displeasure into a genuine threat to "that SOB" that should be reported to someone? What if a neighbor hears cries emanating from the house next door believed to be the result of domestic violence? When driving, what is the responsibility to report a car weaving back and forth across a highway?

These are just some of the preliminary issues and questions that came to my mind following the tragedy at Fort Hood.

I'd welcome comments on this blog entry from anyone who cares enough about the subject to have read this far and would care to make them. I have a sufficiently full plate at this time in this semester that I'm unlikely to be undertaking the necessary research -- let alone writing a book. But I'd enjoy looking at whatever anyone else has written or sources to which they would like to refer me.
* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source, even if I have to embed it myself. -- Nicholas Johnson
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Anonymous said...

In the United States there is no protection against 'potential harm' unless the person in question:

- seeks profession help, that recognizes he is troubled

- becomes psychotic enough that he is noted to be a danger to self and/or others based on psychiatric illness

- or changes his potential threat to a kinetic threat, that is carries out violence toward others

Even in those circumstances a person may roam around the streets, however escaping treatment or arrest (which is often easy to do)

No matter what Hasan wrote in emails, discussed in groups, spray painted on walls, there is no one who could have interfered unless: he was performing poorly on the job; he was noted to be psychotic; or crossed the line to engage in criminal behavior.

If the potential for violence would be a criminal or a psychiatric issue the jails and MHIs would be filled with disgruntled people muttering about their bosses, their credit card companies, or the opposing political party. Such power would almost immediately used as a political weapon at all levels to segregate dissenters (as in Soviet Russia where political dissenters were committed to bogus psychiatric wards). View "V for Vendetta" as a cinematic version of this.

It is not a crime to harbor sadist thoughts toward women -- and might even be encouraged by certain internet sites. Should a person be arrested for thoughts? However once an act of violence is perpetrated, the 'oh no' squad will demand someone's head rolls, while the larger societal devils (stress, unemployment, drug and alcohol use, early abuse, poor education) will simply roll on unabated.

Persons will always become alienated, obsessed, psychotic or disgruntled. Some of these persons will perform heinous actions that hurt other people. Their disordered thinking will then be revealed, but only after the fact. The problem is that the weapons of modern killing are far more lethal that the older weapons - knives, fists, bottles. And thus the acts of mayhem will be more violent and more bloody.

Nick said...

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-- Nick