Sex, Torture, and the Definition Game

"I did not have sex with that woman!", President Clinton told a national television audience. President William Clinton is an attorney. Attorneys think definitions are important. As we all know now, the President was trying to rely upon a definitional distinction between the act of sexual intercourse ("sex," according to his definition, in which he claimed he had not engaged with "that woman") and other kinds of male-female body combinations. The basis of his assertion was that certain other kinds of male-female body combinations don't involve actual intercourse and therefore definitionally aren't "sex" – even though they involve sexual feelings and certain physical reactions (I'm thinking stains on the blue dress here).

President Clinton was playing a version of what I call the Definition Game. The Definition Game isn't new. Indeed, the principles behind the Definition Game were explained long ago by Lewis Carroll in – appropriately enough -- Alice in Wonderland:

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is, " said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all."

The rules are simple: invent a new definition for a word, and then use it with confidence as though the word has always meant just what you are using it to mean. Politicians lose the Game when we citizens notice that the game is being played. And they win when they manage to slip it by us.

President Clinton lost the Definition Game. Like art novices standing perplexed before nonrepresentational art, the nation's citizens might not be able to define "sex," but could tell it when he saw it. And, the citizens decided, stained blue dresses count.

But why, nearly a decade later, am I bringing us back to that unpleasant time in America? Because our leaders are now playing the "Definition Game" again, with much more success. This time, the subject of the Definition Game is torture.

During the early phases of the Iraq war, White House counsel Alberto Gonzales approved a definition of torture which provided that only "organ failure, impairment of bodily function, or even death" constitute torture punishable by law.

Remember all that about bamboo sticks under the finger-nails from the Korean War? Apparently not torture. Chinese water torture – those little drops of water hitting one's scalp, slowly, drop after drop after drop, day after day after day. Apparently not torture. It should have been named "Chinese water massage" apparently. Or perhaps merely included under the category of "daily water rations."

Then, just one week before the start of Senate Judiciary Committee hearings on Gonzales's nomination for the post of Attorney General, the formal definition of torture changed from the one approved by Gonzales. In the new memo, Acting Assistant Attorney General Daniel Levin said torture may include mere physical suffering or lasting mental anguish. That definition certainly sounds a lot more reasonable. But that revised definition is five months old. Why bring it up now?

Because five months later, we're still playing the Definition Game with torture. You've perhaps heard about the Amnesty International report, which branded the U.S. prison camp in Guantanamo Bay, Cuba, as "the gulag of our time." In the typical muddle-headedness of our media, almost all news reports one reads about the Report focus on the word "gulag" and the retorts by President Bush and Mr. Rumsfeld which claim the "gulag" label is absurd. But missing from national press coverage was this critical point: the Amnesty International report accused the United States of creating "a new lexicon for abuse and torture."

That is, Amnesty International said that the United States is trying to claim it isn't torturing anyone, by redefining torture, using instead such names as "environmental manipulation, stress positions and sensory manipulation."

Playing the Definition Game is dangerous. Because words are important. And our use of them convinces not only others – but more insidiously, it can convince even the players of the Game. This happened with President Clinton: I think he honestly thought he hadn't had "sex" with Ms. Lewinsky. And President Bush and Mr. Rumsfeld, having played the Definition Game to avoid bad publicity for their policies on torture, have ended up (I believe) convincing themselves.

Folks, this is serious stuff. It isn't just about how we treat our enemies. It is also about how our enemies treat us. Go back and read the press reports of the first beheadings in Iraq: you'll find that the beheadings came only after the news of our torturing the Iraqi prisoners became public.

But the risks of playing the Definition Game by redefining torture are much more serious than risking the well-being of the prisoners held by our enemies. We risk our national identity – who we are as a people. I have always thought of the United States as the guys with the white hats. So have most of us. But now I fear that we as a nation are wearing hats no longer white, but instead a grim shade of darkening grey. To save us from terrorist attacks, our leaders are restricting our liberties, and expanding the powers of the military to use interrogation methods on our prisoners that we'd all think of as torture if they were used on us.

Is that justified because it is for our safety? In the fight against terrorism, we risk being our own biggest enemy.


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Bill's First Two Columns (As a Guest Columnist)

Global Weapons of Mass Pollution
Gordy Peterson's recent Column, WEAPONS OF MASS POLLUTION, tells it like it is: we here on the San Juan Islands are downstream of a spume of toxic pollution from Victoria. And we have every right to be concerned. But Victoria's complacency at the problems we are suffering is merely a mirror in which our own images reflect. The greenhouse gases that we of the United States (the biggest worldwide contributor per capita of greenhouse gases) spew into the atmosphere are themselves weapons of mass pollution. But rather than being limited to polluting Puget Sound – as is Victoria's pollution – greenhouse gases appear to be changing the climate of the world right now.

Skeptical about the dangers? Global warming is easy to pooh-pooh, because the cause-and-effect cycle is spread out over decades rather than hours or days. Genetically, humans are programmed to understand causes which have immediate effects: poke a sleeping lion with a sharp stick, or eat a poison berry, and (if you survive) you will quickly learn not to do that again. But we don't do so well when the negative consequences don't arrive for decades. And of course, the world's climate is complex: who is to say that current warming is part of a natural trend that would happen anyway?

In fact, most scientists acknowledge that we are now in the throes of global warming to which we humans are contributing. "In legitimate scientific circles, it is virtually impossible to find evidence of disagreement over the fundamentals of global warming… [A] study of … more than nine hundred articles on climate change published in refereed journals between 1993 and 2003 … found that 75% endorsed the view that anthropogenic [that is, human-caused] emissions were responsible for at least some of the observed warming of the past fifty years. The remaining 25%, which dealt with questions of methodology or climate history, took no position on current conditions. Not a single article disputed the premise that anthropogenic [human-caused] warming is under way." "The Climate of Man – III", by Elizabeth Kolbert, The New Yorker, May 9, 2005.

And what are the predicted consequences? As summarized by Ms. Kolbert in her article, "Barely a month passes without a new finding on the dangers posed by rising C02 levels – to the polar ice cap, to the survival of the world's coral reefs, to the continued existence of low-lying nations." And of course, on a more local level, to the continued existence of many salmon runs, which depend on water flows from a winter snow pack that will no longer exist – and to the continued existence of the Orcas which rely in part on salmon for their existence. In addition, we have all read that global warming is forecast to create, not merely warmer weather, but more weather extremes.

Of course, it is possible to find opposing views. Witness for instance the fiction book State of Fear, by Michael Crichton. Not meaning to ruin the plot for you, the author invents a band of environmental extremist whackos who, amidst a whirl of murders and intrigue, plot to create artificial catastrophes which they can blame on global warming. The bad-guy extremists are headed off at the end by the "good guys" – the ones who now understand as "truth" this fiction book's premise that global warming and its predicted dire consequences are mere hype.

Although a fiction book, it comes across as more than that, since it has footnotes citing real studies, by which the author purports to present a "fair and balanced" explanation of the support [well, in Crichton's view the lack of support] for the premise that humans are causing worrisome levels of global warming. Reading the book is like listening to a trial where one side doesn't appear: even in the footnotes, you read only one side of the story.


In an Author's Message at the end of the book, Crichton suggests that "[b]efore making expensive policy decisions on the basis of climate models, I think it reasonable to require that those models predict future temperatures accurately for a period of ten years. Twenty would be better." He asks, in other words, for certainty. But seeking certainty is a fool's path.

Remember that nursery rhyme, "The House that Jack Built"? Imagine you're Jack, and you find you've built yourself a house on a thick vein of coal. So you put in a coal furnace. The coal being free, you chip away at it, and for a long time, you have no worries: you get free heat. But then one day, you've removed enough coal that you begin to wonder whether your house will be stable if you remove any more. So you hire an expert for an opinion: "If I remove any more coal, will I endanger my house?" What if the expert said "there is a five percent chance that if you remove another bucket of coal, your house will fall down" -- would you fill that bucket with coal anyway? What if the expert said the risk was ten percent? Twenty percent? Surely you wouldn't take a fifty percent risk? Would you require certainty? No way – long before you removed so much coal that removing any more would be certain to destroy your house, the increasing level of risk would have stopped you. Whether we're talking destruction of your house or the balance of the world's eco-system, the question isn't just the probability of the consequence, but also, how much will we hate it if it happens.

We have every right to be angry at Victoria for sending pollution our way. But we also have good reason to be concerned about the impact of our pollution on the world's climate. A global weapon of mass pollution indeed.


Protecting Your Right To Die
As everyone who reads a paper or watches the national news now knows, in 1990 a woman named Terri Schiavo suffered brain damage when her heart stopped briefly from a chemical imbalance. Since that time, she has been in a persistent vegetative state while her husband and her parents have battled in Court – and no doubt in person – about whether or not she should be disconnected from the tube sustaining her body with food and water.

In his poem Mending Wall, Robert Frost said that "Good fences make good neighbors." That isn't true only of the stone wall which Frost's old farmer was repairing; it is equally true in a less literal sense of legal barriers. In the Terri Schiavo case, the nation has seen the daily unfolding of a tragedy: the shell of a woman in a persistent vegetative state, kept on life support against what we are told were her wishes; her husband and her parents, who should have been united in grief now bitter enemies. And all for the lack of one simple piece of paper: a living will – or, as it is called in this state – a health care directive.

In a health care directive, one expresses how one wants to be treated if ever diagnosed by one's attending physician to be in a terminal condition or in a permanent unconscious condition, where the application of life sustaining treatment would serve only to artificially prolong the process of one's dying. Terri Schiavo's husband states that she told him that she would not want to be kept alive artificially under such conditions. A credible statement? Although his credibility has been attacked by conservative commentators –one even referring to him as a Nazi – the facts are simple. As an attorney who does estate-planning, I have had probably hundreds of clients in my office expressing their wishes in Health Care Directives. But in my 23 years of practice as an attorney, I can recall only one client out of those hundreds who wanted to be kept "plugged in" to life support systems if in a state such as Terri Schiavo's. Almost universally, clients want to be "unplugged."

Had Terri Schiavo expressed her wishes in writing, this family tragedy would never have happened. Ms. Schiavo, or whatever was left of her, would have been disconnected from her feeding tube, and her body would have been dead and buried 15 years ago.

It is not unusual that Terri Schiavo didn't have a Health Care Directive: few young people do. And yet, we have all seen what can happen if one doesn't. The message: everyone needs to sign a Health Care Directive. Estate planners also recommend a "belt and suspenders" approach of also signing a Health Care Power of Attorney, where one officially appoints an agent to make health care decisions for you if you are unable to make them yourself. A Health Care Power of Attorney gives the holder of it the right to make medical decisions for you when you can't make them yourself, such as hiring – or firing – a physician, or having you moved home from a hospital for your last days. A Health Care Power of Attorney is particularly important for those not living in traditional relationships, such as unmarried couples living together, since the medical establishment will not recognize the rights of even a long-time life-partner to have any involvement in the health care decisions of a patient, unless those rights have been solidified in a Health Care Power of Attorney.

A Health Care Directive need not be expensive. While Health Care Powers of Attorney are more complicated and normally would require the assistance of an attorney, the first line of defense – the Health Care Directive – does not. If you don't have an attorney or want to avoid the expense of going to one, you can do a Health Care Directive yourself. The language is set out in the State of Washington's statutes at RCW 70.122.030. Your attorney can add more muscle to what the State statute provides, but if all you have is the statutorily-provided language, that is much better than nothing.

Strong interest groups are attempting to make it harder to end the life of a "Terri Schiavo"-type patient who does not have a Health Care Directive in effect. Although Ms. Schiavo's husband has prevailed in his battle to allow Ms. Schiavo to die in accordance with what he has testified were her wishes, some commentators are now suggesting that in the absence of a living will, there should be a presumption that the person wants to live. "It is life, not death, that our constitution protects," said Andy McCarthy in his March 28, 2005 article in National Review Online, entitled "PVS and the End of Life." High sounding words that unfortunately ignore the reality that under the circumstances in which Ms. Schiavo is "living" (if one can call it that), in my experience estate-planning clients when asked almost universally say they would want to be "unplugged." Some politicians are anxious to lead the battle to keep that from happening. In his March 29th Op Ed column in the New York Times, Paul Krugman reported that "Tom DeLay … believes that he's on a mission to bring a ‘biblical worldview' to American politics, and that God brought him a brain-damaged patient to help him with that mission."

As we have all seen with the Terri Schiavo case, this is important. And changes that the Schiavo case may bring to State or Federal law make it more important. People commonly put off estate-planning matters: don't let that happen to you.

And finally, even a Health Care Directive or a Health Care Power of Attorney, once fully executed, won't do you any good if it's locked away in your safety deposit box and no one else knows it's there. Make sure that you've given a copy of it to your medical provider and to your parents, children and the other important people in your life who might be called upon to make a difficult decision.



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