Gaza and Proportionality

Israel is not a party to Protocol I to the 1949 Geneva Conventions, governing the protection of victims of international armed conflicts. Nor, for that matter, is Hamas. The PLO, even before it was given formal authority as the Palestinian authority, committed to abide by Protocol I and the other Geneva Conventions, although for many years thereafter plainly violated these provisions by deliberately attacking civilians. As the successor government to Fatah in Gaza, it could be argued that Hamas is bound by the previous accession of the PLO, but since Hamas has rejected other Fatah agreements, it is not clear what the point of such an argument would be.

Although Protocol I is not treaty law binding on either Hamas or Israel, the principles it expresses are nonetheless sufficiently widely accepted that they could be considered norms of customary international law or jus cogens, that is, binding quite apart from any treaty obligation. And even if not, they are, in their content, admirable. Thus, in the court of public opinion, it is worth thinking about whether Hamas and Israel have abided by them.

For Hamas the answer is easy: Not even remotely. Deliberately targeting civilians, as Hamas missiles do---to the extent that they can be said to "target" anyone, given their unpredictability---violates humanitarian law. (Article 51(4) forbids "indiscriminate attacks.") So too does the Hamas practice of taking refuge behind civilian human shields. Israel does not target civilians, although Israel has killed a great many civilians as a "collateral" consequence of attacks on Hamas fighters in the current conflict. Although Protocol I does not forbid military operations that result in such collateral consequences, it obligates state parties to minimize such casualties. In particular, it contains a proportionality norm that forbids attacks "which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."

Here I want to make some observations about the proportionality norm:

1) Talking heads and others commonly talk as though humanitarian law requires that the overall military operation must be proportionate to the provocation. However, that is not true of international humanitarian law. If the use of force is justified in national self-defense (or authorized by the UN Security Council), then a nation may wage war against the aggressor nation. Here, Israel contends that Gaza (treated for these purposes as a nation governed by Hamas) has attacked Israel via rocket fire. That is a casus belli, and once war is justified, Israel has the legal right to attack the Hamas military, including its infrastructure.

2) Now, international law does appear to contain a different proportionality norm of roughly the sort that the talking heads have in mind: As the International Court of Justice said in adjudicating Nicaragua's complaint against the U.S. during the 1980s (which the U.S., while not showing up to defend itself, nonetheless tried to justify as collective defense in response to Nicaraguan incursions into Costa Rica, El Salvador and Honduras), armed self-defense or collective defense must be both necessary and proportionate. The ICJ judgment in that case did not reach the question of whether sponsoring the contras and mining Nicaragua's ports was disproportionate because it found no valid claim of collective defense, as no country had asked for American help in defending against Nicaragua. But the language there and in international law treatises does strongly indicate that self-defense justifying war does not entail unlimited war aims. As my colleague Jens Ohlin (co-author of Defending Humanity) explains (in an email to me): "the UK was justified in expelling Argentina from the Falklands, but invading the mainland and toppling its government would have been disproportionate."

3) Viewed in this light, Israel's principal war aim appears to be legitimate: to destroy or degrade the ability of Hamas to launch rockets into Israel. The matter is not entirely free from doubt, however, because Israel has not been entirely clear on its war aims. But the point I want to emphasize here is that the question of whether Israel's war aims are disproportionate to the casus belli is very different from the question of whether the collateral civilian casualties are disproportionate to the achievement of Israel's military objectives in attacking Hamas fighters. Or to put the point somewhat more tendentiously: There is no legal requirement that Israel's use of force be proportionate to Hamas's use of force.

4) If we think about these issues from the standpoint of morality, rather than international law per se, we might think that whether civilian casualties are proportionate depends ultimately on the value of the military objective. I have real doubts about the likely impact of the current operations by Israel. It seems to me that they will further radicalize Palestinians---not just in Gaza but also on the West Bank---and thus render less likely any lasting peace either with Fatah or with the less ideologically fanatical members of Hamas. And if the whole operation will, in the long run, decrease rather than enhance Israel's security, then it is hard to see how any civilian casualties are proportionate to the operation. However, that is not the legally relevant measure of proportionality. The legal norm of proportionality under international humanitarian law focuses more narrowly on the relation between civilian casualties and immediate military objectives. Killing Hamas fighters and commanders is a legitimate objective in a war that appears to have legitimate (if not necessarily wise) aims overall, and so the real open question is whether the suffering incidentally inflicted on the civilian population is proportionate to the achievement of that objective.

5) I honestly don't know the answer to that question. It is notoriously difficult to determine what counts as proportionate under humanitarian law, and some academics and judges think this renders the proportionality norm useless. To the extent that we can identify factors, the ratio of military to civilian casualties is certainly a relevant consideration, but other factors also come into play, including whether the enemy bears responsibility for mixing its forces among civilians. To be clear, the fact that Hamas uses human shields does not absolve Israel of the responsibility to minimize civilian casualties, but it may bear on what counts as a sufficient effort at minimization, and thus on what counts as proportionality.

6) Mostly unrelatedly, I have heard some defenders of the current Israeli operation point to the fact that Hamas was elected, and receives support from a substantial portion of the civilian population of Gaza. Thus, it is said, civilians in Gaza are reaping what they sowed. Whether this fact is morally relevant, it is certainly legally irrelevant. If the rule were otherwise, civilians in democracies could not count on the protections of humanitarian law. A civilian remains a civilian even if he is loyal to and supports his government, however odious that government's policies may be. Of course, a civilian who takes up arms but not a uniform ceases to be a civilian, and in so doing violates the law of war, but that is a different point entirely.

Posted by Mike Dorf

Helping the Non-Rich, by Accident

One of the most politically sacrosanct benefits available to taxpayers is the deduction for home mortgage interest. Along with the deduction for state and local taxes, this benefit expresses a longstanding and bipartisan policy preference to encourage home ownership in this country. Whether the net result of these tax benefits is actually to increase home ownership is a separate question, but there is no doubt that politicians view this benefit as untouchable. In fact, when in 2005 President Bush created a commission to make recommendations for fundamental reform of the federal tax system, he made abundantly clear that any recommendations must include tax incentives to encourage home ownership. (The panel did so, although their entire report was ultimately ignored by lawmakers.) There seems to be nearly unanimous political support for the idea that the tax code should make us a nation of homeowners.

Who is really helped by these pro-homeowner tax benefits? Last week, at the annual meetings of the Association of American Law Schools, Professor Dorothy A. Brown of Emory Law School offered a fascinating discussion of the effects of these federal tax benefits on low-income and minority homeowners. She showed, among other things, that a surprisingly large number of such homeowners receive no actual benefit from the deductions for mortgage interest and property taxes, because they do not itemize their deductions. As Dorothy demonstrated, this means that the tax code only benefits some homeowners while leaving those with lower incomes and less expensive houses out in the cold. She thus showed that the system currently provides benefits in a regressive fashion, and she argued that "this cannot stand."

I completely agreed with Dorothy's motivations (as I almost always do), and I found her argument to be thought-provoking. Because of my belief (see here, here, and here) that expanded home ownership should not be a goal of public policy, however, I asked Dorothy two questions during the Q&A. First, I suggested in essence that we should address the inequality that she had identified by "leveling down" rather than "leveling up." That is, rather than following her suggestion that we should make sure that the tax benefits for home ownership are available to all homeowners, we should instead take them away from all homeowners. She suggested in response that (beyond the political impossibility) there would be difficult transition costs in such an approach, which is true but (in my opinion) not insurmountable.

My second question, which Dorothy unfortunately was not able to address due to time constraints, was whether the current system is not actually (and completely inadvertently) beneficial to low-income and minority citizens. That is, since home ownership is a very bad way to save money (not only during a dramatic crash like the current crisis but more generally because building home equity is the very definition of undiversified investing), and since low-income people are the least able to cope with the loss of their home equity (since they almost never have any other significant amounts of money saved in any other form), a tax system that leaves out the low-income taxpayers is actually doing them a favor by not encouraging them to own a home.

Therefore, although my first choice would be for the government to completely change course and discourage individual home ownership, the current system -- which seems to disadvantage those with less income and wealth -- might be a better alternative than to adopt a plan to eliminate that supposed disadvantage. This outcome thus works, by sheer luck, as the equivalent of a progressive tax policy to steer the most financially vulnerable away from possibly ruinous risk-taking.

I have to admit that I am somewhat uncomfortable with my own conclusion. There is something unsettling about this "cruel to be kind" approach to social policy. Still, if the choice is to leave things as they are or to change the tax code such that it would encourage more lower-income and minority citizens to buy homes, I think I would choose the former.

-- Posted by Neil H. Buchanan

Keynes Rides Again

When it comes to jaw-dropping news stories, this week's headliner was surely George W. Bush's final press conference. With his combination of defensiveness, cluelessness, and undiluted arrogance, those 45 minutes were the perfect way for his presidency to end. Still, for my money, the biggest news of the new year so far comes to us from the annual meeting of the American Economic Association. In the NYT's Business section last week, Louis Uchitelle reported that the nation's mainstream economists have suddenly discovered that they do not know what they are doing. More than thirty years of economic theory and research have been exposed as irrelevant (if not dangerous) by the current economic crisis, and the big names in the business are now admitting that they are at a loss.

As Uchitelle put it, "At their last annual meeting, ideas about using public spending as a way to get out of a recession or about government taking a role to enhance a market system were relegated to progressives. The mainstream was skeptical or downright hostile to such suggestions." He could easily have amended that to say: "At their last thirty or more annual meetings . . ." When I was in graduate school in the 80's, it was very clear that any research in the Keynesian tradition -- the school of thought that said that the economy could become stagnant for significant periods of time and could be brought back to health by government spending -- was not welcome. Self-correcting mechanisms were all the rage, with market rationality thought to guarantee that government spending would be either pointless or harmful. Indeed, the only sub-school of thought that adopted the name Keynesian (modified by "New") argued only that business cycles happened for rational reasons in response to unexpected shocks to the economy.

To get some sense of the intellectual environment, consider the following title of an article on fiscal policy: "Is it Sometimes Good to Run Budget Deficits? If so, Should We Admit it (Out Loud)?" I wrote that article just over two years ago for a law review, but even though it was not written for an economics journal, the tone of defensiveness couldn't be clearer. Even to suggest that there were limited situations in which fiscal policy was good for the economy was so alien to the conventional wisdom that it was necessary to soften the blow as much as possible.

Now, we have some of the biggest names in the economics profession saying quite frankly that the seething disrespect for original Keynesian ideas has left the profession at a loss. Alan Auerbach, a prominent economist at Berkeley whose work has included a heavy dose of anti-Keynesian prescriptions for fiscal retrenchment (which I have critiqued here), frankly admitted that "[w]e have spent so many years thinking that discretionary fiscal policy was a bad idea, that we have not figured out the right things to do to cure a recession that is scaring all of us." Uchitelle added (referring to comments by Auerbach): "[A]fter a generation of ignoring public spending in their research, the nation’s mainstream economists lacked the expertise to help guide the process. 'We have not figured out the right course of action,' he said."

That is an astonishing admission, and Auerbach deserves credit for his willingness to speak so frankly on the record. Even more amazing was Martin Feldstein's conversion. Feldstein, a former chief economic advisor to Ronald Reagan, made his academic mark by attacking Keynesian economics, including repeated comments about the "Keynesian fear of saving" and his rather churlish claim that only someone with no children could be a Keynesian economist. (Keynes was childless -- and famously bisexual.) Now, Feldstein says: “While good tax policy can contribute to ending the recession, the heavy lifting will have to be done by increased government spending.”

It would have been much better if we had never had to learn just far off track economists had wandered. As it stands, though, it is very big news that Keynes is back.

-- Posted by Neil H. Buchanan

Closing Gitmo and "Super-Terrorists"

The news that the Obama Administration is planning to close the detention center at the Guantanamo Bay Naval Base is important mostly for its symbolic value. Gitmo and Abu Ghraib have become potent international symbols of American abuses of power and vital recruiting tools for our enemies. As reported in today's NY Times, however, the real question is not whether and when to close Gitmo but what to do with the current detainees. Happily, the Obama team is uninterested in a law authorizing indefinite detention within the U.S., as that would, as they recognize, simply create a "new Guantanamo someplace else." So, what to do with the detainees? Here are the options:

1) Some number will be sent to foreign countries for release or proceedings there. The Obama Administration should have some greater success than the Bush Administration did because it is not tainted by the detentions in the first place, and so receiving countries that would not have wanted to appear to be doing Bush's dirty work may be more willing to take detainees. However, this option is not a panacea. There are some prisoners who cannot be sent to any acceptable country. There are two limits on acceptability: a) We don't want to send people we think quite dangerous to countries that will simply release them or release them after a very short period; and b) We shouldn't send prisoners to countries where they will be tortured (although it's quite possible that anybody who could have been sent to such a country has already been sent there by the Bush administration).

2) Some number of detainees will be released on the ground that there is no longer any good reason to hold them, if there ever was. This procedure has already been used for some detainees--unilaterally by the Administration and as a result of the combatant status review tribunals.

3) The Obama Administration has also indicated that it plans to scrap the military commissions and, for some number of detainees against whom there exists admissible evidence of serious offenses, provide full-dress criminal trials in federal courts. Although I haven't seen discussion of the point, another possibility would be full-dress trials before courts-martial under the Uniform Code of Military Justice, which even Neal Katyal, arguing the Hamdan case, conceded, would be consistent with the Geneva Conventions.

Are the above options sufficient to "place" all of the current Gitmo detainees? I think so, but we might worry about a residual class of suspected "super-terrorists." Here are the necessary characteristics of the suspected super-terrorist that prevent him from falling into any of the above categories:

a) No acceptable country will take him;

b) We have good reason to think that he is very very dangerous and thus it would be a huge risk to release him;

c) Said "good reason" does not take the form of admissible evidence sufficient to prove guilt of a past life-sentence-worthy or capital crime beyond a reasonable doubt, either because

i) the evidence comes from illicit means such as torture but is (somehow) nonetheless reliable;

ii) presentation of the evidence would compromise a vital ongoing counter-terrorism program;

iii) the evidence is strong enough to warrant extreme concern (proof by a preponderance, say) but not so strong as to persuade a jury of guilt beyond a reasonable doubt;

iv) the evidence all relates to future plans of terrible destruction but not to a past crime;

or

v) some combination of i) through iv).

I have very serious doubts about the existence of any such super-terrorists. The most dangerous people who are at large---bin Laden (assuming he is alive) and al-Zawahiri--are both currently under indictment in the U.S. and al-Zawahiri has been sentenced (in absentia) to death in Egypt. There is little reason to doubt that capture and trial of either would result in a conviction and death sentence or life imprisonment. Indeed, there is a much larger question of whether either could get a fair trial than of whether the government could secure a conviction.

So if even bin Laden and al-Zawahiri don't count as falling into the category of people who couldn't be moved out of Gitmo, it's hard to figure out who would. Perhaps if A.Q. Khan were being held at Gitmo, if Pakistan would simply release him, and if all we had on him were a stated intent to proliferate nukes in the future, he would be the one prisoner who falls into this netherworld. But of course, Khan is free in Pakistan (having been pardoned), and there is simply no suggestion that any of the Gitmo detainees are nuclear masterminds with a global network of connections.

Bottom Line: Closing Gitmo will, as President-elect Obama recently said, take a bit of time to deal with the logistics, but there are no insuperable obstacles.

Posted by Mike Dorf

Lifeblogger in Chief

In my latest FindLaw column, I consider the legal implications of the President's use of a Blackberry. (President-elect Obama is apparently being told that he has to stop using his once he's President because of security concerns and the requirements of the Presidential Records Act). The core point I make in the column is that legal duties to disclose information---whether those that apply to govt officials or private firms---should not depend on the medium in which the particular information happens to be stored but instead, on whether the information is of the sort that should be disclosed. In particular, I note that email and text messaging can, in different circumstances, be more like documents or more like oral speech, and I conclude that in some respects it is its own unique method of communication.

Here I want to play the futurist for a moment and ask about a dystopia of total recall. Already, so-called "life bloggers" attempt to record nearly their entire lives, either photographically or in text. Technology now exists so that a person who wanted to could, in fact, record his entire life. Let's suppose such technology becomes cheap and unobtrusive: perhaps a very small audiovisual device implanted in the forehead subcutaneously. Could firms or persons be required to record their entire lives---with searchable records generated automatically?

Consider the benefits: Credibility contests would disappear, as would the ability to dissemble. Crime more broadly would decline dramatically, as anyone who is deterrable would see the near-impossibility of detection.

Of course the idea of mandatory total recall and total disclosure is totalitarian and repugnant. Or at least so it may seem to those of us who grew up in a world in which we believed in the value of privacy. But the popularity of personal blogs, myspace, facebook, etc., and the willingness, indeed eagerness, of large numbers of young people to broadcast what my generation would regard as private details of their lives, suggests that this norm may be changing. (Needless to say, I consider blogging about law and politics more "public," although there are many people who do not voluntarily disclose their views about such matters, regarding them as private.)

From a constitutional perspective, the erosion of privacy norms is potentially significant. To determine whether government activity constitutes a "search" requiring probable cause and a warrant, Fourth Amendment doctrine inquires into whether the activity probes an area where there is a "reasonable expectation of privacy." That term, in turn, depends on whether people subjectively expect privacy and whether they objectively have privacy in the relevant domain. As social norms and technology change, this area may gradually shrink to zero.

Posted by Mike Dorf

Alberto Gonzales's Job Search

The Austin American-Statesman reports that Alberto Gonzales has been unable to land a job with a law firm since resigning from his position as attorney general. Gonzales blames this on the economy and the "tough time for law firms." Under the circumstances, he says, firms "are going to be careful about bringing on people where there are questions about things that may have happened in their past."

Apparently Gonzales thinks that in good times law firms don't care about "things that may have happened in [a job applicant's] past." With the caveat that I don't know much about law firm hiring practices, I'd venture he's off base about that.

Carolyn Elefant's interpretation at Legal Blog Watch is that firms are giving Gonzales a taste of his own medicine and rejecting him on the basis of his political views. She points out that many big firms are representing Guantanamo detainees in habeas proceedings and suggests that Gonzales's approach to detainees while at DOJ would make him unwelcome at those firms.

I dig the poetic justice in this explanation, and it's more plausible than the tough job market. It doesn't seem correct to me, though, because I'd think that there are well-regarded law firms whose partnerships mostly share Gonzales's views on detainee policy (and other issues of public controversy).

My guess is that Gonzales is in a tough spot because much of what he did as attorney general looks to be not just despicable but also illegal and, possibly, criminal. Criminal prosecution, perhaps for perjurious testimony before Congress, is possible. (Less likely, but not out of the question, is eventual prosecution in the United States or elsewhere for his role in war crimes while he was White House counsel.) In good times and bad, most firms with reputations to protect are probably reluctant to attach their name to a lawyer who may soon be indicted for his performance at his last job.

Posted by David Gold

Sunstein on Risk, Reason and Reviewing Rulemakings

The Center for Progressive Reform (CPR), among others on the left, seem poised to oppose the Sunstein nomination to lead the Office of Information and Regulatory Affairs (OIRA). This is OK as far as it goes, but it could easily jump the tracks and get silly. OIRA is an über-agency in the executive branch, reviewing rulemakings of other “action” agencies far and wide. Every issue it touches is serious and most are very difficult.

In my own field (environmental law), OIRA has often opposed rules with reasons I’ve found weak-to-ridiculous. But when the fight over Sunstein gets going, it’s likely to include non-issues like the conduct of cost-benefit analysis (CBA) in rulemaking at all. The conduct of CBA isn’t worth fighting over. It isn’t going to be abolished. Period. Sunstein’s been a champion of mending CBA, but he’s attacked rulemakings like arsenic’s parts per billion in drinking water that many on the left thought fully cost-justified. That’s his baggage. But we should keep things in perspective. Back when the arsenic-in-drinking-water controversy was on, U. of Texas lawprof Tom McGarity had this to say.

Ultimately, the source of Professor Sunstein’s unwillingness to abandon the paradigm altogether is his profound and abiding lack of confidence in the capacity of an uninformed and simpleminded public to make wise decisions about the magnitude of health, safety, and environmental risks, and the steps that should be taken to reduce those risks.

All I can say in response to McGarity is, “well, yes—because the very same citizenry has voted to delegate such power out of their own hands consistently for almost a century.” I don’t agree with everything Sunstein has said on CBA over the years, I confess. But that is very different from saying that I think he is methodologically or fundamentally misguided. And so to those who “oppose” CBA root and branch, my question is: what would you have our agencies do? CBA in regulatory contexts is, I’m afraid to tell you, genetically encoded within the agencies themselves. Some just do it more seriously than others. And, in actuality, several targeted reforms in the rulemaking process would be real improvements. Think tanks on the left like CPR need to find a more constructive stance than simple “opposition” to CBA. (Sid Shapiro and Chris Shroeder’s recent piece here is, I think, aiming them in that direction, although only very qualifiedly.)

Their tack has shifted subtly in recent years to a ‘rule of law’ argument: Congress never meant to permit CBA when it legislated our modern regulatory edifice in the first place. But the argument boils down to this: statutes like the Clean Air Act delegated huge economic and societal risk balancing choices to expert agencies but assumed they would just do a better job than average people of “eyeballing” the choices. And this is absurd. The whole point of delegating such choices to bureaucracies is to straighten and quantify them to the maximum possible extent. The rule of law argument really only works when there is affirmative evidence that Congress meant to prohibit CBA in the statutory trigger at issue. And those are the exception.

Sunstein’s most recent opus—arguing that the OSH Act of 1970 is unconstitutionally vague—is perhaps more worrisome than his work on CBA proper. I’m dubious that the OSH Act is any more vague than the Clean Air Act and the conservative Rehnquist Court rejected a big delegation doctrine challenge to it in 2001—nine to zip. Perhaps having an OIRA administrator who usurps the action agency’s power to interpret its statute is something worth worrying about. But taking Sunstein’s piece to mean he’s against workplace safety regulations would be fatuous. Look at what OSHA’s been able to do with its meaningless statute in 40 years. The scholars at CPR can attest to OSHA’s haplessness and paralysis. They’ll say its OIRA’s fault—but, the fact is, OIRA can’t bottleneck a rule except in a vacuum of guidance from the governing statute. In the world as it is, OSHA spends a lot of money and has perfected flyspecking while it ignores tragically significant risks. One possible fix might just be to reboot, honestly.

Sunstein’s confirmation should focus on real questions because this office is incredibly important. (And it’s not often a President has moved so quickly to install an OIRA chief.) Those on the left will have the most to do with whether that happens or not.

Posted by Jamie Colburn

The Pentagon Dishonors Our Wounded Veterans

After considering the matter, the Pentagon has decided not to award the Purple Heart to veterans who suffer from Post-Traumatic Stress Disorder (PTSD) as a result of their service. The Purple Heart is a medal bestowed upon soldiers wounded or killed in enemy action, entitling its awardees to various benefits, including waiver of co-payments for medical treatment at veterans hospitals as well as high priority in scheduling medical appointments. PTSD is a psychiatric disorder that afflicts many exposed to highly traumatic events (such as war combat) and is characterized by symptoms that can include recurring nightmares, uncontrollable rage, and severe depression. Victims of PTSD often find it impossible to work or otherwise function productively in the ways they could prior to their traumatic experiences.

Those who defend the exclusion of PTSD from the injuries qualifying a veteran for the Purple Heart make some variation on four arguments: 1) it is sometimes difficult to diagnose PTSD with certainty, 2) symptoms may be faked, 3) enemies do not deliberately inflict PTSD, in the way that they deliberately kill and maim with weapons, and 4) PTSD is not a physical wound. These arguments are unpersuasive and demonstrate the continuing vitality of the mind/body fallacy that has plagued societal attitudes toward the mentally ill over the centuries.

1) On the question of ease of diagnosis, the Pentagon could have addressed this matter in a variety of ways, short of disqualifying PTSD altogether. It could, for example, have established criteria under which health professionals would decide -- just in the way that doctors reviewing disability claims decide -- who qualifies for the PTSD diagnosis for purposes of receiving a medal. Just as a person who suffers a stubbed toe as a result of an enemy assault would not thereby qualify for a Purple Heart, so would a soldier who suffers from mild, normal-range sadness after serving in the military similarly not qualify. Though I would not support doing so, moreover, the Pentagon could even require total disability as a prerequisite for the medal. By instead denying all sufferers of PTSD the Purple Heart for their injuries, the Pentagon implies that because diagnosis may be difficult, it is not worth the bother to recognize the sacrifice of afflicted service members.

2) Any time a person must meet criteria for any medal, there is room for fakery. Though it is difficult to fake the loss of a limb, it is certainly possible for a person to pretend that a physical injury suffered in a non-military context was in fact the result of enemy fire. Anyone who appears at work on crutches has had the experience of jokingly inventing heroic adventures to explain what was actually a slip on black ice. Furthermore, the assumption that people who claim to suffer from mental illness are inclined to and can easily "fake" their symptoms is a common misconception that infects lay discussions about the insanity defense as well. The reality is that because of the stigma attached to mental illness, people are much more likely to "fake" mental health than they are to fake a psychiatric disorder. And for those who do wish to engage in such fakery, most are not such talented actors that they can fool professionals who are trained to distinguish the ill from the well.

3) It is quite difficult to identify exactly what an enemy's goal was when we later assess the causal relationship between an assault and the injuries that followed. An army might intend, for example, to destroy munitions through a particular bombing operation but nonetheless know that in the process, soldiers will likely suffer and die. In such a case, no one would argue that the maimed and the dead did not earn Purple Hearts because the enemy did not "intentionally" kill or maim them. Injuries suffered as a result of an enemy assault in war are the foreseeable consequence of such an assault, and so are the mental disabilities that afflict many veterans who return from combat. PTSD, in other words, is -- in its causal connection to war -- not distinguishable from the loss of life and limb in a military campaign.

4) The notion that a psychiatric illness is not "physical" assumes that a person can have an experience in his or her mind without a corresponding physical component. If we ever believed such nonsense, our current capacity to analyze the brain -- through functional MRI studies as well as measures of various chemicals in the blood -- proves it to be false. When a person experiences psychological distress, there is a physical basis for this experience. Indeed, the etiology of PTSD lies in the impact of terrifying events on a person's neurological circuitry. Though psychiatric illness remains less well understood than much (though by no means all) physical distress, we do know that both types of suffering are experienced through an individual's brain and nervous system and -- when the trigger is war -- that both are a physical consequence of service in the armed forces.

In October, Congress passed, and the President signed, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, thus giving legal effect (in the health insurance context) to the notion that mental and physical illnesses are morally equivalent and merit equal societal consideration. It is disappointing that for those who serve in the military, such equality -- like that on the basis of sexual orientation -- remains elusive.

Posted by Sherry Colb