Thursday, June 13, 2013
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Tom Farr's congressional testimony about the International Religious Freedom Act
Tom Farr -- the first Director of the State Department's Office of International Religious Freedom testified before Congress the other day on the implementation of the 1998 International Religious Freedom Act. It's bracing, and important, reading. Here's a bit:
[T]he first question: why does the United States promote religious freedom in its foreign policy? Can it enhance our national security?
The most immediate answer is that in 1998 Congress passed the International
Religious Freedom Act (IRFA) which mandated the initiative. IRFA established a State Department office of international religious freedom, put a very senior diplomatic official (an ambassador at large) at its head, and created an independent U.S. Commission on International Religious Freedom to provide separate policy recommendations and act as a watchdog. The law also encourages, but does not require, the use of foreign aid to advance religious freedom abroad.
But what’s the rationale for IRFA and the institutions and procedures it establishes? What do we hope to accomplish?
First and foremost, I believe that advancing religious freedom is simply the right thing to do. Unjust restrictions on religious individuals and groups, as well as violent religious persecution, have steadily worsened in recent years. The results have been catastrophic for many people and many societies.
Studies by the Pew Research Center demonstrate that, as of 2010, 75 percent of the world’s population lives in countries where religious freedom is severely restricted. That’s three-quarters of the world’s people. And there is no sign things are getting any better.
Millions are vulnerable to violent abuse, such as torture, rape, “disappearance,” unjust imprisonment, and unjust execution, because of their religious beliefs and practices, or those of their tormentors.
A copy of Farr's testimony is available here: Download Farr testimony.
Supreme Court Limits Gene Patents
Today in the "breast cancer gene" case (Association for Molecular Pathology v. Myriad Genetics), the Court unanimously held that a naturally occuring gene sequence cannot be patented simply because it has been isolated from other parts of the overall DNA sequence; it falls within the principle that one cannot patent a product of nature. At the same time, the Court also unanimously held that cDNA, a synthetically produced version of DNA with the elements ("introns") removed that do not "code" to produce amino acids and proteins, is not barred from patentability by the "product of nature" doctrine. The opinion is here. Coverage from the SCOTUS Blog, with directions to other coverage, is here and here.
A very quick comment: The opinion upsets the practice of the Patent Office practice of handing out patents on gene sequences themselves (while leaving the biotech industry with other means of securing returns on investment). The line between naturally occurring phenomena and human creations is not always easy to draw, and the Court's language includes several ambiguities; and one can argue that the Court should have excluded the synthetic "cDNA" as well. But the decision does reaffirm a meaningful exclusion of "products of nature" from patentability in this context, which is both consistent with our deep moral traditions and important for patent policy. It limits a patentholder's ability to get expansive control over all the uses of a gene sequence for testing, therapies, counseling, etc. It also harmonizes in general with the notion, strongly supported by our theological traditions, that features of nature are not subject to human ownership: they are left by the Creator for the use of all. (Particular instances of them can be owned--I can own a naturally occurring tree, but not the DNA sequence that generates such a tree--although that matter is different of course with human beings.)
Ignorance, Faith Healing, and Murder
There is an awful and very difficult criminal case proceeding in Philadelphia involving parents who failed to obtain emergency medical care for their 7 month-old child. The child died of bacterial pneumonia and dehydration. The parents have been charged with third degree murder as well as involuntary manslaughter.
In this post, I want to focus on the murder charge. Pennsylvania uses the common law term, "malice," to describe this type of murder. In Pennsylvania, murder in the first degree is done with the specific intent to kill; murder in the second degree is felony murder; and murder in the third degree is a catchall category for all other murders done with malice. In Commonwealth v. Overby, 836 A.2d 20 (Pa. 2003), the Pennsylvania Supreme Court affirmed the following jury instruction involving the charge of murder in the third degree: "Malice in Pennsylvania has a special meaning. It does not mean simple ill will. Malice is a shorthand way of referring to the three different mental states that the law requires as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acted, first, with an intent to kill, or second, an intent to inflict serious bodily harm, or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm." In New York, the equivalent of Pennsylvania's third category of malice goes by the name, "depraved indifference" murder (that is, implied malice murder), which I've talked a little bit about before. The parents face up to 40 years in prison if convicted of third degree murder.
In the report noted above, there seem to be two different defenses offered by the parents. But the defenses are conflated in the story in a way that makes it confusing to understand what seems to be the key issue with respect to the murder charge--the parents' mens rea.
The first defense is that they "did not know their baby was sick enough to die." This is a defense that sounds in ignorance. The idea is that if someone lacks sufficient education or background knowledge to form the requisite state of mind, he cannot be charged with a malicious state of mind. Though the parents may have been negligent in the ordinary tort law sense of the phrase, that negligence does not rise to the level of the sort of wanton, 'don't-give-a-damn' recklessness that is necessary to sustain a charge of murder. One highly problematic factual issue with respect to the ignorance defense in this case seems to be that this has happened before. The story reports that four years ago, the parents' two year-old child also died of bacterial pneumonia. Given this history, the defense of sheer ignorance becomes much less plausible, and the charge of wanton recklessness more plausible. If the defense is simply lack of knowledge, then there is a case to be made that when the very same disease afflicts a second child, it becomes more difficult to argue that the parents were not consciously disregarding a very high risk of death or serious bodily harm to the child in a way manifesting extreme indifference to the value of human life.
But things might be different with respect to the second defense: that they believed and trusted that God would heal their child. Here the idea would be that notwithstanding what had happened in the past, they continued to believe that God would intervene to stop death. And the reason that they failed to report on the child's condition to state authorities was not that they were unaware that the child's condition was mortal, but that the power of God's "cure" would be compromised if they reported. (Incidentally, some people have argued that exempting parents from the full arsenal of criminal liability will make it more likely that parents will fail to report. But I'd like to see the statistics supporting those claims: as a matter of intuition--I have not studied the matter--it's not clear to me that the incidence of failure to report will increase unless the full range of criminal liability is brought to bear).
One might argue that the charge of third degree murder based on extreme indifference to the value of human life is equally applicable here. But I am not so sure. If the defense is accurate, then it seems to me that what the parents manifest is not indifference, but true (from their perspective) concern. There may be exceptional cases of course--parents who truly do desire the death of their children. But as a general matter, from the parents' perspective, they are not consciously disregarding an unjustifiable risk in a way that manifested their extreme indifference to the value of human life. They were consciously doing what they believed was in the best interests of their child. When the defense is ignorance of the danger of a particular disease, though the defense might work in the case of the first child, that ignorance becomes much more difficult to claim in the case of a second child suffering from precisely the same medical condition as the first. But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work. In fact, the parents may believe that the risk to their children is not great, but very small, just in virtue of their belief that though things may look bad, God will intervene. The fact that God did not intervene last time does not vitiate the chances that he will probably intervene this time.
In sum: (1) the faith healing defense seems to me stronger in this case than the defense of ignorance; (2) it does not seem to me that, if one accepts the faith-healing defense, the parents are in the same category as other people who act with wanton disregard for the value of human life; and (3) the truly tough question is whether these parents are different from other parents whose gross neglect results in their children's death.
Monday, June 10, 2013
Should We be Troubled about the “Surveillance State”?
Catholic teaching affirms the moral weight of privacy and confidentiality, as a matter of respect for human dignity. As the Catholic Catechism says, even beyond the special protection of professional secrets, “private information prejudicial to another is not to be divulged without a grave and proportionate reason.”
Having now been identified in The Guardian as the “whistleblower” on the National Security Agency’s (NSA) surveying data from internet traffic, 29-year-old defense contractor employee Edward Snowden says that he was willing to sacrifice his high-paying job and a comfortable life in Hawaii “because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”
Others have responded that this is much ado about nothing, with little danger to privacy. As one commentator assures us, “Calm down, folks. Big Brother is not watching you.”
Still, as more comes to light about the secret surveillance programs, such assurances are increasingly less than reassuring.
At first we were told that only metadata was being collected about international telephone calls -- lists of phone numbers called from another phone number, etc. Probable cause would have to be shown to obtain a court warrant before anyone could actually listen in on a telephone conversation -- although apparently only if national security personnel concluded that someone inside the United States was on one end of the call.
But then we learned that internet databases are being mined by the NSA, producing a massive central collection of data that may include all Americans, as well as foreign individuals. While the only legitimate targets for data searches may be foreign individuals and foreign internet communications, the large national security fishing net sweeps up Americans as well. We are promised that domestic fish will be tossed back into the virtual sea.
In an editorial more than a decade ago, criticizing the Bush Administration’s similar “Total Information Awareness” program, Ben Stone (the head of the Iowa Civil Liberties Union) and I argued:
When law enforcement has a particular reason to suspect that an individual is violating the law, the government always has had the option of obtaining a search warrant or issuing a subpoena to secure information crucial to an investigation of an actual crime, including obtaining consumer information from credit-card issuers about recent charges on cards, from internet service providers about activities on computers, etc.
But the government may gather that information only when it has a basis to believe that an identified person is engaged in criminal activity. To allow the government to assemble a detailed dossier on everyone in advance is to treat every American as a criminal suspect.
Nor am I much comforted by the supposed reservation of this database to targeting foreign individuals for national security reasons. We are told the government may trove through its comprehensive data collection for information on an individual only if it believes that person is foreign. The data sifting methods supposedly “are designed to produce at least 51 percent confidence in a target’s ‘foreignness.’" By that measure, a rather large and non-trivial percentage of the specific individualized data profiling ends up being assembled (mistakenly we are told) on Americans.
The Morality of Human Rights
Some MOJ readers may be interested in a paper I just posted to SSRN (here): "The Morality of Human Rights". This is the abstract:
In
the period since the end of the Second World War, there has emerged what never
before existed: a truly global morality. That morality — which I call “the
morality of human rights” — consists not only of various rights recognized by
the great majority of the countries of the world as human rights, but also of a
fundamental imperative that directs “all human beings” to “act towards one
another in a spirit of brotherhood.” The imperative — articulated in the very
first article of the foundational human rights document of our time, the
Universal Declaration of Human Rights — is fundamental in the sense that it
serves, in the morality of human rights, as the normative ground of human
rights.
I begin, in the first section of this essay, by explaining what the term “human
right” means in the context of the internationalization of human rights. I also
explain both the sense in which some human rights are, in some legal systems,
“legal” rights and the sense in which all human rights are “moral” rights.
Then, in the longer second section, I turn to the inquiry that is my principal
concern in this essay: Why should one take seriously the imperative that
serves, in the morality of human rights, as the normative ground of human
rights? That is, what reason or reasons does one have, if any, to live one’s
life in accord with the imperative to “act towards all human beings in a spirit
of brotherhood”?
This essay, the final draft of which will be published in a symposium issue of
the San Diego Law Review, was my contribution to the conference on “The Status
of International Law and International Human Rights” that was held at the
University of San Diego School of Law on May 3-4, 2013, under the auspices of
the School’s Institute of Law and Philosophy. Some of the material in this
essay is drawn from my new book, Human Rights in the Constitutional Law of the
United States (2013). Most of the material here that is not drawn from my book
was first presented in a lecture I was honored to deliver at Santa Clara
University in March 2013, under the auspices of the Bannon Institute of the
Ignatian Center for Jesuit Education.
Saturday, June 8, 2013
Camus to the Dominicans
“When
I think about the
Church’s social teaching, I love to
recall some words that Albert Camus ... addressed to a group of
Dominicans who
invited him to come and speak to them at the end of the Second World
War. Camus said he would discuss the problem of
evil in life, as he understood it as an agnostic. He closed his talk,
as I recall the story,
with this thought: ‘It may not be
possible for us to create a world in which no innocent children suffer,
but it
is possible to create a world in which fewer innocent children suffer.
If we try to do that, if we look to the
Christians and do not find help, where else will we go?’” --Bryan
Hehir, "Wanted: A New Global Order," The Tablet, Dec. 1, 2001,
at 1700, 1702.
Friday, June 7, 2013
Cooperation with evil and setting the terms of engagement
In this post, NCR's Michael Sean Winters observes, in the course of discussing the HHS lawsuits and the activities of the USCCB in support of religious liberty, that "[the Amish] model is not our Catholic tradition. We do not shut out the world, we engage it." This observation is connected to his concern that the bishops and other critics of the HHS mandate have over-emphasized the issue of culpable "cooperation with evil," and thereby lost sight of the fact that "[t]here is simply no way to engage a sinful world without somehow participating, even cooperating, in the evil in the world." The very reason, he continues, the Church has carefully developed and deployed the notion of "remote material cooperation with evil" is "testimony to the Church’s tradition of going out into the world and not becoming an Amish-like sect."
I have described the nature of the burden that the HHS mandate imposes on Catholic institutions in terms of integrity, mission, witness, and character, and not in terms of "cooperation with evil," because I think it is important to remember that "religious freedom" involves more than a guarantee that the political authorities will not require us to sin. The mandate burdens the religious freedom of, say, the University of Notre Dame, in a way that violates federal law, even if the University can and does end up complying with it. (I think that Michael and I agree on this point.)
A point I would add to his post, though, is this: It is true that the Church, and Christians, can and must be "engaged" in and with the world. Some are called to the monastery and the cloister, but I take it that the Church's mission is to fulfill the Great Commission and to live out Matthew 25. That said, there is no reason for the bishops to accept or take as given the state's increasingly aggressive efforts to "set the terms" of that engagement in ways that require the Church's social-welfare activities to be secularized, or to mimic the activities of state agencies. It is not "sectarian," or culture-warrior-ish, or narrow, or Puritan, or Amish for the bishops to say, "look, we are going to stay here, in public, and feed the poor and fight for justice. And, we'll play by the rules as we do so. But, those rules need not and should not require us to secularize and they should not proceed from the premise that religion belongs in private or that social-welfare work somehow belongs to the state." Those who are insisting that the bishops should not allow a misguided and unrealistic desire for purity to cause them to shut down important social-welfare activities rather than submit to legal conditions have a point -- i.e., these activities are important and it would be a big deal to abandon them rather than comply with these conditions -- but they should not lose sight of the fact that these conditions are contigent, not given, and they should join the bishops in doing all they can to oppose conditions that needlessly burden the mission and character of religious institutions.
"Pacem in Terris at 50"
Here's George Weigel, at First Things, writing about the anniversary of Pacem in Terris. Among other things, he notes:
The second enduring impact of Pacem in Terris was to have inserted the Catholic Church fully into the late-modern debate over human rights, aligning the Church with those human rights activists who played key roles in bringing down the Berlin Wall and ending communist tyranny in Europe—a historic transition that made “peace on earth” (including the disarmament called for by John XXIII) more of a reality. Like many United Nations documents, and like subsequent Church statements, Pacem in Terris engaged in “rights talk” rather loosely, with virtually every imaginable social good being described as a “human right.” That has led to some enduring issues, even problems, in the explication of Catholic social doctrine. But matters of conceptual precision notwithstanding, there should be no doubt that the Church’s deployment of the language of “human rights” has helped magnify its moral voice in world affairs.
I remember, in college, confidently asserting to my mentor and philosophy teacher, who was supervising my senior thesis, that "rights talk" was problematic, etc. He said (and this was at Duke!), "you should read Pacem in Terris." Good point.
US AID and State-Promoted Anti-Gay Violence
Here is a news story that might shed some additional light on the matter about which Susan and Patrick have just posted. It comes courtesy of a newspaper about which I am not particularly enthusiastic, but which at least exhibits the journalistic virtue of attempting to report events in neutral terms uncolored by the 'hermeneutic of suspicion.'
Pax, B
Bob
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