Topic: Government & Politics

Sick Man Ethics: Gonzalez, Card, and 1776

It’s a legend of American patriotism, vividly portrayed in the popular Broadway musical 1776. Faced with the likely defeat of the Declaration of Independence, which had to be accepted by all thirteen colonies in the Continental Congress for it to be ratified, John Adams convinces Delaware’s Thomas McKean to set out for his colony on horseback and bring the cancer-stricken Caesar Rodney back to Philadelphia, so the dying man can turn the deadlock in Delaware’s delegation into a vote for independence. Rodney, frail and sick, arrives after the arduous journey and rises to his feet to declare that Delaware supports Mr. Jefferson’s document, allowing the United States to be born.

Inspiring! But, according to New York Senator Charles Schumer, Pennsylvania Senator Arlen Specter, and thousands of political commentators, columnists and bloggers, the incident was “outrageous misconduct,” “unforgivable,” “disgusting,” “vile,” and “offensive.” How dare someone impose upon a desperately ill man simply for matters of national interest? As attorney Joseph Welch famously admonished Red-baiter Joe McCarthy in one of television’s first history-making moments, “Have you no sense of decency?”

Oh…wait a minute…I’m getting mixed up here! What Schumer et al. are condemning was the 2004 effort by then White House Counsel Alberto Gonzalez and former White House chief-of-staff Andrew Card to get bed-bound Attorney General John Ashcroft, who was in intensive care recovering from surgery, to over-rule Deputy Attorney General James B. Comey, who was refusing to sign off on the administration’s proposed wire-tapping measure. According to Senate testimony by Comey, Card and Gonzalez set out on a late night journey from the White House to the hospital to get Ashcroft’s support for the wartime security measure. Not Delaware; not on horseback. Ashcroft wasn’t being asked to gallop miles in the July heat. He was just asked for his signature, and he never had to get out of bed. So why was McKean’s mission in 1776 worthy of Broadway immortality, while what Gonzalez and Card did in 2004 was so horrible?

Simple. Those attacking Gonzalez and Card don’t agree with the measure the Bush administration was trying to get a sick man to approve, and they don’t like Gonzalez and Card. Ethically, there is no difference at all between the 1776 story and Comey’s tale. Indeed, the imposition on Caesar Rodney, desperately ill from cancer, seems far, far, worse than what was asked of Ashcroft. The journey on horseback to Washington could easily have been fatal to Rodney, and McKean knew it. “God forgive me,” he tells Adams in the musical. But the risk to Rodney’s life was required to give birth to a new nation, and so it was a clear example of one of those times when the end indeed justifies the means.

And the Bush White House objective of protecting that nation from terrorist attacks 240 years later? Is that worth visiting an Attorney General’s sickbed? Of course it is…unless you believe, as many do, that the domestic wire-tapping of suspected terrorist contacts wasn’t necessary or right. Just as, I am sure, British aristocrats would have been shocked at the ordeal McKean forced on Caesar Rodney.

As Douglas Kmeic, a professor of constitutional law, former assistant attorney general and head of the Office of Legal Counsel to Presidents Reagan and George H.W. Bush tried to explain in a Washington Post op-ed, the incident related by Comey was neither illegal, sinister, or improper. Contrary to how it is portrayed in most accounts, there was no legal requirement for Ashcroft’s signature or anyone at Justice; the President had colorable authority to institute the program on his own authority, but wanted Justice’s approval. The dispute between the Office of the General Counsel and the Department of Justice concerned the tension between the Constitutional war powers of the Chief Executive and the Foreign Intelligence Surveillance Act, a matter subject to considerable legitimate argument. Ultimately, Ashcroft refused to sign off on the measure, and it was subsequently revised prior to receiving the Justice Department seal of approval.

So no laws were broken. No deceptions occurred. The system worked.

And the late night visit to John Ashcroft’s bed of pain was a completely ethical choice, placing the nation’s security (as interpreted by the President and his staff) over the welfare and comfort of a public servant. This is the correct choice. It is only “disgusting” to those who interpret the act according to their prior opinion of the actors. The name for this phenomenon is “bias.”

And Caesar Rodney? The incident in 1776 was mostly invention, cooked up by writer/lyricist Peter Stone. Rodney did gallop from Delaware to Philadelphia to vote for the Declaration, but he didn’t have cancer. He wasn’t even sick. Rodney had left Congress because, as a Brigadier General in the Delaware militia, he had to return home to subdue a Loyalist riot. McKean got word to Rodney that his vote for independence was desperately needed to break an impasse in the Delaware delegation, so Rodney rode his horse 80 miles, through a thunderstorm, arriving at Independence Hall’s doorstep just in time to cast his decisive vote.

So Thomas McKean didn’t do anything that deserved to be called “vile” or “unethical” to get Caesar Rodney’s vote.

Neither did Andrew Card and Alberto Gonzalez when they went to get John Ashcroft’s signature.

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