Georgetown Law Faculty Blog

The Transplant and Trolley Problems go to Court? Surgeon Charged with Hastening Death to Harvest Organs

In a previous post, I drew attention to some recent work in the cognitive science of moral judgment.  Hardly a recognized field a decade ago, today it is one of the most active areas of research in the cognitive and brain sciences, as Steven Pinker's recent essay on the moral instinct amply illustrates.  Much of this research centers on extensions of the philosopher Philippa Foot's famous transplant and trolley problems, an approach to moral psychology that my colleagues and I helped to pioneer (see, e.g., here, here, here, here, and here), and that has since become one of the major research paradigms in the field (see, e.g., here, here, here, here, here, here, here, and here).  I recently published two new essays on the topic, one of which is specifically concerned with these problems and is directed mainly toward philosophers and neuroscientists, and the other of which examines the broader role of conceptions of moral psychology in early American law and is directed primarily toward legal historians.

In today's New York Times, Jesse McKinley reports on what appears to be a real-life illustration of the transplant problem  -- not the standard version, in which a doctor kills a healthy patient in order to harvest his organs, but a familiar variation of it, in which the targeted patient is not healthy, but rather is already dying -- that has resulted in criminal charges being filed against a Stanford-trained transplant surgeon,  Dr. Hootan C. Roozrokh.  According to the story, Dr. Roozrokh, who has pled not guilty, is alleged to have deliberately hastened a patient's death in order to accelerate the harvesting of his organs for the purpose of performing much-needed transplants.  Apparently, the prosecution is the first of its kind in the United States.  It remains to be seen whether the case will test the proper scope of the traditional necessity or "choice-of-evils" defense, which some commentators have held or implied might justify or excuse this type of conduct, at least in certain circumstances.

Thanks to Georgetown law student Jill Pasquarella for the pointer.

War Crimes Act and Hamdan (Rosa Brooks)

Reproduced below (full version after the jump) is a column I published on June 30 in the LA Times, the day after the decision in Hamdan was  announced. The response to the column makes me think it's worth clarifying a few things about the potential implication of Hamdan for potential prosecutions under the War Crimes Act.

1) In Hamdan, the Court held that Common Article 3 of the Geneva Conventions applies -- as a matter of international law-- to the US conflict with al Qaeda. 

The Court did *not* decide the question of whether any or all US detainees are entitled to POW status under the 3rd Geneva Convention, or protections under the 4th Geneva Convention on civilians. What the Court held was essentially what human rights and humanitarian law experts have long argued: that Common Article 3 of the Geneva Conventions is an "in the alternative" article, applicable to all conflicts that are not otherwise covered by the Geneva Conventions.

On the one hand, Common Article 3 provides only  very "basic" protections-- such as the right not to be tortured or murdered-- and these are only a tiny subset of the full range of protections to which people who qualify as POWs (for instance) are entitled. On the other hand, the relatively minimal protections of Common Article 3 are given to all "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause." What that means is that whether a prisoner was wearing a uniform, bearing arms openly, etc., etc. has nothing whatsoever to do with whether he qualifies for protections under Common Article 3.

2). As Carlos Vazquez noted in his earlier post , the Court also did not decide that the Geneva Conventions give rise to judicially enforceable private rights.  However, they did hold that when a US statute incorporates the Geneva Conventions by reference-- as the relevant section of the UCMJ does-- then any applicable articles in the GC are part of US law and enforceable to that extent.

There is nothing novel about such an approach, and readers should note that this also has nothing to do with the current controversy about SCOTUS "reliance" on foreign or international law. Throughout our history our courts have routinely interpreted treaty law and foreign law when our own statutes direct us to do so.

3) Here's how this relates to the War Crimes Act. It too incorporates into US law parts of the Geneva Conventions. Specifically,  it defines war crimes as, among other things, any conduct that violates Common Article 3.

So... not to belabor the point, but if federal law makes it a crime to violate Common Article 3 of the Geneva Conventions, and the Supreme Court says that Common Article 3 applies to the US conflict with al Qaeda, then any US national who violates Common Article 3 with regard to his or her treatment of an al Qaeda suspect detained by the US has committed a war crime -- assuming, of course, all the requisite mens rea elements can be proven, etc.

4) Which leaves the final question: what conduct violates common article 3? Well-- for one thing, as the Court just noted in Hamdan, one violation of Common Article 3  is "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

But Common Article 3 also says that the "following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment."

As a matter of both international and US law, there is zero doubt that techniques such as waterboarding, sexual humiliation, placing people in dog collars, forcing them into painful positions for extended periods, mock executions, etc. violate Common Article 3.

Which-- again, sorry to belabor the point, but it seems not to be as obvious to some as it is to me-- means that many of the techniques approved by the Bush administration and used against detainees constitute war crimes, and are prosecutable as such in US courts.

5) Do I think we're about to see Secretary Rumsfeld in the dock? No (see below). Politically, prosecutions (at least during this administration) are somewhere between "not bloody likely" and "absolutely wildly impossible." And as Marty Lederman has argued, there may even be a due process argument against prosecutions for prior mistreatment of detainees, on the grounds that OLC had advised that Common Article 3 did not apply to the conflict with al Qaeda.  (I don't think I agree, but everything Marty says is worth serious consideration).

But that's more than enough introductory blather. Here's the column, a shorter version of some of the above.

The Los Angeles Times
Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution.

June 30, 2006

THE SUPREME Court on Thursday dealt the Bush administration a stinging rebuke, declaring in Hamdan vs. Rumsfeld that military commissions for trying terrorist suspects violate both U.S. military law and the Geneva Convention.

But the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.