Privacy vs. Justice

On Monday, the U.S. Supreme Court denied Dr. Bernard Rottschaefer’s appeal for a new trial, an appeal based on clear, post-conviction evidence that the prosecution’s star witness lied under oath.

That’s unfortunate, but expected.

A woman named Jennifer Riggle testified in the criminal trial that Dr. Rottschaefer gave her OxyContin and Xanax prescriptions in exchange for oral sex. Her testimony took a hit when, after the trial, her boyfriend was released from prison, and produced dozens of letters in which Riggle admitted to him that she had made up the oral sex stories and lied under oath in exchange for leniency with respect to her own drug charges. Despite those dozens of letters, the U.S. attorney who prosecuted Rottschaefer – Mary Beth Buchanan – refused to drop or lessen the charges against him, and to date has also refused to pursue perjury charges against her star witness.

But the case isn’t over just yet. The four other women who testified at Dr. Rottschaefer’s trial have since launched civil suits against him, and all of them have given testimony during discovery that directly contradicts their testimony at trial.

The civil trial’s discovery process revealed that one woman was getting from another doctor the same medication Dr. Rottschaefer was convicted of prescribing to her – at several times the dosage Dr. Rottschaefer was prescribing. That doctor was not prosecuted, casting some doubt on the prosecution’s claim that Rottschaefer had no “legitimate medical” rationale to prescribe the medications. Others testified that they did, in fact, have some ailments that would necessitate the prescscriptions Dr. Rotschaefer was writing.

None of this came out during the criminal trial. Taken together, the testimony of these women shows a clear case of doctor-shopping and deception, and shows that Dr. Rottschaefer – like so many of the doctors the DEA has brought down – was guilty at worst of being a poor judge of character. Hardly the kind of thing for which you put someone away for 25 years.

It’s also clear that all of these women were facing their own drug charges, charges that were reduced based on their testimony against Dr. Rottschaefer.

One particularly outrageous aspect of these cases is the way HIPAA’s privacy provisions tie the hands of defense attorneys. We’re only now finding out about these women’s histories with other doctors because defense attorneys were prevented by HIPAA from knowing of or viewing their medical records. The prosecution was free to make spurious claims to the jury – claims they knew or should have known were inaccurate – but the defense couldn’t look over the very medical records that would have rebutted many those spurious charges.

Of course, if the prosecution knew of potentially exculpatory evidence – that is, their witnesses’ dealings with other doctors – and didn’t disclose it to the defense, Ms. Buchanan’s office might soon be forced to answer some difficult questions about prosecutorial misconduct.

Medical privacy is important, of course. But if the DEA is going to continue to go after these doctors with charges that hinge on the medical histories of some of their witnesses, defendant doctors ought to be able to peruse those histories for evidence that could help prove their innocence.

Wanted: An Excuse to Stop Hurting the Economy

From the Washington Post online: a synopsis of the speech given yesterday by U.S. Trade representative Susan Schwab. In that speech, which I heard, Ambassador Schwab made it clear that the U.S. was not going to offer any more cuts to agricultural subsidies as part of the Doha round of trade negotiations under the auspicies of the WTO. According to her, a “bold” offer on subsidies didn’t elicit the desired response (i.e., an offer from the European Union of further cuts to agricultural tariffs) when it was tried last October. So we shouldn’t expect anything from the U.S. soon, and certainly not before the mid-terms.

To her credit, and this was not reported in the Post article, Ambassador Schwab did admit that unilateral liberalization of trade barriers and subsidies is in America’s best interests, but she went on to say that the administration needed “an excuse” for taking that step. Apparently the significant burden on taxpayers and consumers from the current trade policy is not a large enough reason to liberalize trade.

The negotiation-via-press-release approach is not working, and Ambassador Schwab referred to the “quiet conversations” that were going on among trade ministers to try to revive the round. She gave absolutely no clue on how the talks went with EU trade commissioner Peter Mandelson when he visited Washington DC last week, except to say that the talks were “healthy.” Boy, would I like to have been a fly on that wall.

One last comment on Ambassador Schwab’s speech: her belief in a “critical mass” of bipartisan support for free trade is, I think, misguided. I can’t see the Democrats, should they take control of the House(s), giving the Bush adminstration any wins on trade. That leaves us with the original deadline of July 2007 (when the current trade promotion authority expires) for any Doha deal to come to fruition.

Are Californians Stupid? We’ll Soon Find Out

A month or so from now, we’ll get a chance to measure the IQ of voters everywhere in the form of several ballot initiatives. The most telling will be California’s Proposition 87, which proposes to tax the hell out of California oil production as a means of reducing gasoline prices. This, of course, is utter madness, but California has more than its share of economic illiterates, so it’s got a fighting chance.

An op-ed I co-wrote on the matter was published today in the Orange County Register. For more on this sort of unhinged nonsense, check out a study we wrote earlier this year on oil profits, price gouging, and the relative competitiveness of transportation fuel markets.

Despite all the crackpot economic gibberish thrown around Washington over the summer, Congress somehow managed to avoid signing off on anything near as stupid as Prop. 87. Let’s hope Golden State voters are at least the equal of our otherwise brain-dead federal legislators.

Things to Do in Washington When You’re Dead Weight

As public choice theory tells us, bureaucrats tend to act in their own self interest, even though that often comes at the expense of taxpayers. If you’re not yet sold on public choice theory, consider one of the topics at the annual conference of the Senior Executives Association.

Fearful of the possibility of impending budget cuts, this recent meeting of high-ranking federal employees featured a session on “Survival Skills for the Coming Budget Crunch.”

This session could have been an opportunity to instruct senior managers on ways they could reduce or eliminate unnecessary expenditures, pare down the size of their staff, and shed duplicative operations.

Or it could be a lesson on gaming the system and saving one’s own hide.

Here’s how the Federal Times described it:

Managers should consider declaring a crisis in their programs, said Andy Uscher, SEA’s corporate relations director. They should develop relationships with budget examiners and build political support.

If possible, Uscher said, they should connect programs to national security or the president’s management agenda.

They can also argue that cuts have already occurred or assert that reductions would actually increase costs, he said.

They should consider using contractors or consultants instead of new employees, Uscher added.

“Contracting is just not tracked as much as people are,” he said.

So if you’re a senior official in the federal government facing the prospect of a cut to your budget, you should cozy up to politicos, intentionally overstate the importance of your agency, and lie about the implications of budget cuts?

It’s no wonder that the dismal status quo reigns supreme in Washington.

Considering Coulson

In less than 24 hours, Andrew Coulson’s recent post on criticism of the Iraq War has sparked an angry reaction across the blogosphere. It’s all exciting vitriol — and completely misplaced.

Coulson’s post is neither a defense of the war nor a criticism. He claims neither that the war is justified nor unjustified. He does not challenge the fundamental positions of many Iraq War critics. Coulson’s post is an appeal for better thinking; for war critics to drop a voguish but flawed argument against the war, in favor of stronger, more rigorous arguments.

Unfortunately (if understandably), people have become so emotional and politicized over the war that they misunderstand and misconstrue such appeals. They are not distinguishing between sloppy reasoning and good reasoning, and are equating appeals for better arguments to “dumb” and “retarded” opposition. But it would be worthwhile for those critics to take the time to understand what Coulson is arguing, because it would help the critics make their case.

Coulson’s post involves the recent National Intelligence Estimate that includes the claim that the Iraq War has become a recruitment tool for terrorist organizations. Several anti-war critics have seized on this claim to make the following argument against the war:

  1. It is not in a nation’s interest to increase the number of enemies who want to harm that nation. (Call this the Enemy Recruitment Premise, or “ERP.”)
  2. The Iraq War is increasing the number of enemies who want to harm the U.S.
  3. Thus, the Iraq War is not in the nation’s interest. QED

Coulson offers a potent challenge to this reasoning: Many nations, engaged in what have broadly been considered just wars, have violated the ERP. The American colonies, in opposing the British crown, made enemies of the Redcoats and the Hessians. The U.S.’s support of the British in WWII put us on the wrong side of the Axis. The Union’s opposition to secession led to hundreds of thousands of Southerners flocking to the Confederate cause (or, for Southern sympathizers, the Confederacy’s efforts to secede led to hundreds of thousands of Northerners rallying to the Federal cause).

Indeed, it’s difficult to think of any war in history that would pass the ERP. So either (1) no war in history has been in any nation’s interest, or (2) the ERP is wrong.

Coulson’s claim is that the ERP is wrong; creation of enemies is not a sufficient condition for a war being against a nation’s interest. This does not mean that the U.S. will be justified in going to war if we end up “winning” in Iraq. It simply means that critics of the Iraq War need to rely on other arguments for their position. Hence, it is to completely misunderstand Coulson to believe that he’s claiming that what has happened since the war doesn’t matter.

So, what anti-Iraq War arguments could work? Coulson explicitly gives one in his post: “Critics are welcome to argue that we and freedom-loving Iraqis will ultimately lose there, and be worse off if we do” — call this the Loss Argument. Another is that the Iraq War may be winnable, but it will be extremely costly to do so (in blood and treasure) — call this the Cost Argument. A third is that there are alternative, less-difficult ways to promote the nation’s interest in the Middle East — call this the Alternatives Argument. There likely are many other effective arguments.

The Iraq War’s production of more anti-U.S. fighters is a serious concern. But it is not a sufficent condition for the war being wrong — instead, it is a part of a Cost Argument against the war (i.e., those combatants can inflict a terrible cost on both U.S. troops in the Gulf and civilians here at home).

Coulson’s argument is not some obscure semantic point or a straw man argument. It is philosophically significant. For a topic as important as the Iraq War, we should be rigorous in our reasoning. We should not let passions cloud our ability to understand and consider other people’s points of view about the war — especially when those points of view may not conflict with our own.

Posner on Humanitarian Intervention

Below Andrew criticizes the claim that our Iraq intervention has failed because it has increased the risk of terrorist attacks.  While I, as a caveman lawyer, have little expertise on matters of foreign relations, I am an expert on what other lawyers have to say about foreign relations. 

Here, Chicago law professor Eric Posner (and son of Richard Posner) argues that the Iraq war has revealed a different trade-off:  the uncertain payoff of humanitarian military intervention.

Global Warming Gas Bags

In an op-ed I recently cowrote with Peter Van Doren for the San Diego Union Tribune, I argued that California’s much ballyhooed legislation to cut greenhouse gas emissions by 25 percent by 2020 should probably be taken no more seriously than a New Years’ Eve Resolution.  The legislation has no teeth, it has offers no program to translate wish into reality, and has all the earmarks of any number of empty environmental pledges that have turned to dust with the passage of time.

There are now strong indications that the story line we predicted for California is being played out in Europe as well.  A report just out finds that without additional measures, the EU will only be able to reduce its greenhouse gas emissions by 1.6 percent below 1990 levels. Compare that with the 8 percent reduction promise undertaken by those same countries under the Kyoto Protocol.

One reason why environmental laws often cost less than advertised by the business community is that the goals written into those laws are subsequently ignored.  But as long as politicans gain full credit for promises made and can escape blame for promises broken, this is the sort of thing that is the rule rather than the exception.