Sheridan: Con-Law

THE TRUTH

Inspired by a Jon Carroll column in the S.F. Chron:

If this blog is about anything it's about how we see the world.  This thinking-about-thinking, what we say is real, is the basis of Con-law.  Law, in our society, has to be based in reason.  Otherwise we call it "irrational" meaning crazy, not based on reality, therefore unconstitutional.  So we need to know what's real and what's not; what's rational, and what's not.  This isn't always easy to do.  Democrats think the GOP is nuts, and vice versa.

As it happens, I've just finished reading Max Hastings's "Retribution," about the war against Japan that began a year and a half after I "wuz borned," as a fellow StatNislandah likes to say.  That would be World War Two.  The reason I specify is that yesterday afternoon I popped into a place in the Marina District of San Francisco before heading home, hoping to have quiet beer.  This turned out to be impossible as the bartender, female, had a voice that would steer ships clear of rocks outside the Golden Gate, so I left, but not before being greeted by an old-timer, someone with more years on him than me.  He was the only other one in the place and was trying to start a conversation. "I only come in here around five," he said.  "I've been in during the evening when it's crowded but it's all young people," he said. "They don't even know what World War Two was."

It must be tough to outlive the main event of your life.

I have an attorney friend whose main event was that he got into Notre Dame on a baseball scholarship four decades ago and became a hero.  He's prosecuted murder cases and been in private practice handling heavy-duty stuff for years, since then.  In which of these activities has he had joy?  Playing baseball for Notre Dame.

Well, the reason for mentioning WWII is that the next book I'm reading is a biography of Japan's Emperor Hirohito.  He was emperor before,  during and after the war.  The war was fought by Japan in his name.  He okayed every initiative.  Nothing could happen without his okay.  He was God, after all, in Japan.

This makes him Gang-leader-in-chief, the Number One co-conspirator in any war-crime prosecution. Hundreds of thousands of soldiers and Japanese civilians alike died in his name, as he embodied the state.  Hundreds of thousands more civilians throughout Japanese occupied Asia and the Pacific died as the result of Japanese invasion.

We didn't prosecute him, of course.  We needed him to control his defeated people and he needed us to keep his skin.

In Japan, politics and religion (Shinto) had become united.  The result was a war started by Japan and ended by the United States following the use of two atomic bomb blasts over Hiroshima and Nagasaki.  The two A-bombs are not necessarily what brought the Japanese military to its knees.  Japan's leaders didn't seem to care how many Japanese died, as long as they, especially the military leaders didn't lose face.  For them it was death before dishonor.  And die they did.

Hastings's thesis is that Japan wasn't listening.  They'd already lost the war in the Pacific for all practical purposes, their unsupplied island battalions starving to death in tunnels and caves.  Japan had endured the flattening of Tokyo and other cities by U.S. Army Air Force Gen. Curtis LeMay's napalm-bomb dropping B-29 Super-Fortresses roaring over with air fleets a thousand strong at times and the promise of more to come.  They continued to rain down fire even after Hiroshima and Nagasaki.

Yet Japan refused to deal with the U.S. to surrender.  It's ambassador in Russia tried to deal with Stalin, who, realizing that Japan was a leaf about to fall, invaded Japanese occupied Manchuria in order to share in the spoils of the soon to end war.

When Russia invaded Manchuria (then called by Japan, Manchukuo), north of Korea in China, Japan had a million men in China, devastating the place with their atrocities, Nanjing (formerly Nanking) being the most well known example.

Japan was in a state of near-collapse.  The Emperor, who willingly supported the military, finally, in a nod to reality, worked up the guts to cave in, over Army and Navy opposition.  They tried to stage a coup to prevent the surrender. 

Hirohito broadcast a recorded message, which the army tried to thwart from going out, advising his people that the war had ended "not necessarily to Japan's advantage." 

In other words, sorry guys, we lost, but you knew that was happening, didn't you, like from all of the burned out cities and your starvation. 

Japan was starving and homeless, it's industries halted, the nation blockaded and bombed flat.  The American attitude, which I shared, and still do, was that this couldn't have happened to a nicer bunch of guys, who asked for it and had it coming. 

That was our attitude, anyone in the U.S., even kids, especially kids, who were around at the time, as I was, a little kid.  I remember sharing the nightmares of the Japanese with friends.  Theirs were as bad as mine, if not worse. 

That was a bad introduction to the Japanese.  Since then, as an adult, things have changed.  I've taught students from Japan, and Russia, and had German friends.  All my own enemies.  People are capable of adjusting attitudes, not assigning collective blame to people who weren't responsible.

I only wish that Japan would own up to its past.  I don't know how else it can move on without outsiders bearing the suspicion that if there's been no acknowledgment, nothing's really changed, has it?

Well, the reason I go into this is because according to the biography of Hirohito by Herbert P. Bix, called Hirohito and the Making of Modern Japan (Perennial/Harper Collins, 2000), the previous emperor Meiji (Hirohito's grandfather)'s advisers had crafted and handed down, through Meiji, "an ideology of rule grounded in fusion, ever since antiquity, of religious awareness and state consciousness."  Hirohito's tutor, Prince Ito Hirobumi, had earlier written a commentary on the constitution of Japan, in 1889, "in which he had furnished the classic rhetoric for the theocratic emperor:"

"The Sacred Throne was established at the time when the heavens and earth became separated." (Kokiji)  The Emperor is Heaven Descended, divine, and sacred.  He is preeminent above all his subjects.  He must be reverenced and is inviolable.  He has indeed to pay due respect to the law, but the law has no power to hold him accountable to it....He shall not be made a topic of derogatory comment nor one of discussion.

The problem with this is that it is nonsense, even by Japanese standards, as Bix points out.  "Allegedly nonreligious "state Shinto" (as opposed to "sect Shinto") took shape during Meiji's reign directly from the belief that Japan was a holy realm (don't laugh, some Americans think that about us) protected by the Shinto deities and ruled by an emperor who was descended from the sun goddess (instead of say, the Founding Fathers or Jesus).  In 1890, Meiji issued an imperial rescript, a proclamation having the effect of law, on education, asserting that "emperors were the source of all morality."

Well, this is what Japan was filling the heads of its future emperor and its people with.  Not very real, was it.

We have a few beliefs of our own that may not hold up well to the light.  Americans believe in "Democracy," as though we have the God-given right to shove it down the throats of Muslims who don't want it.  Iraq, for example.  Big invasion.  When all the other good reasons to invade turned out to be lies, invasion to install Democracy on those who don't want it even when they find out what it is, turns out to be a good enough reason for us.  Who elected us?

What calls this to mind, apart from the fact that I'm reading about how beguiled by crazy notions other nations have shown themselves to be, is a column by Jon Carroll of the S.F. Chronicle, today, reprinted below.  He points out how difficult it is for the fish to see the water in which they swim.  After being hauled into the boat, they may be able to see the ocean, but not while it's all  around them.

Carroll's description of the difficulty of seeing reality while in it describes the problem experienced by the good people of Salem, Massachusetts who executed nineteen blameless citizens thought to be witches, on the accusation of children who were feeding off the paranoia of their parents and the town authorities, Christian ministers, our famous pilgrims, essentially, who believed that people could make agreements with the devil to harm the neighbors.  These bad neighbors (anyone you didn't like) bewitched children, causing them to fall into fits and accuse the bad, albeit innocent, neighbors.  Other neighbors found the bad neighbors guilty.  It was all perfectly crazy.

But the sad thing about being crazy is that the cure for craziness is not effected by telling the person afflicted "You're crazy!"  Try telling Pres. Bush that he's crazy.  He'll tell you why you're crazy.

I can tell you what I think the cure is, but it's not much of a cure.  Since we don't have international shrinks (We wouldn't listen... Would you listen to a French or a German critic?  You'd call him "just another politician" and ignore him, no matter how correct s/he is.) We have to rely on our own devices, just as the fishies do.  Sometimes they swim into the net, and sometimes they don't, but when they do, it's tuna salad sandwiches for lunch.

The last time we went to war, against Saddam's Iraq, we ignored European critics (our allies) but bowed to demands to go to the United Nations.  We sent Colin Powell, our former top general and then Secretary of State.  You and I were not shown the evidence that Saddam had WMD or was behind Al Qaeda and the WTC/Pentagon bring-down.  But Powell was.  He was allowed to pore over the evidence on which the Bush administration relied to take the country to war.  Powell pronounced it good.  It was bad, as in false.  Powell wanted to be member of the Bush team more than he wanted to be on America's team.  He either lied or was taken in.  In either case, he presented a pack of certified bogosity to the U.N. and off we went to war in 2003, five years ago.  Powell should be ashamed.  Bush should be ashamed.  We should be ashamed.  But here we are, up to here in a swamp teeming with alligators and we can't make a move in any direction, in or out, without getting eaten up.

Because we believed in wrong things.

Wisdom, as a wise man said, is knowing what not to believe.

Powell, our designated wise man, flopped.

Check out Carroll, below and see whether you have a better description of the problem of seeing what ails us while we're ailing, not decades afterwards, when it's too late.

 

WATERBOARDING & OTHER TORTURE

Eighty-one percent of the country feels that we're headed in the wrong direction, according to to the headline over a report on a poll in yersterday's San Francisco Chronicle at www.sfgate.com. 

After all, we have the war in Iraq, which we entered on false premises and where we've lost 4,000 soldiers, most since the president stood under the now famous "Mission Accomplished" banner on the aircraft carrier Lincoln.  Sure, the banner was for the sailors, who had completed a strenuous and dangerous deployment to the Persian Gulf region, but he president was basking in reflected glory, since he'd sent them there.

The nation-building phase is going poorly, having required a surge of troops to dampen the insurgency and a commitment to remain that will be years, with additional losses.

Abu Ghraib and Guantanamo have shown us to be lawless when it comes to advancing our own interests while continuing to hold the world to high standards we don't want to meet ourselves.  We wriggle away from, and out from under, treaties we're offered or have signed on global warming and treatment of prisoners.  We avoid signing treaties outlawing land mines and hand-grenades attractive to children.  We're hypocrites the way NY Gov. Spitzer was forced to resign for his hypocrisy, pretending to be morally pure but demonstrating a flair for moral impurity that not even he could withstand when revealed.

The economy is imploding, as exemplified by the run on Bear Stearns which destroyed it almost literally overnight, causing the Treasury and the Fed to plug the dike.

Eighty-thousand more jobs were lost in the last period, according to the U.S. Department of Labor, the New York Times reported, today.

Unless the Democrats really screw things up, the nation seems ripe for one of its periodic swings which ousts the incumbent majority party, once seen as nearly invincible, in favor ot the other, which typically seems like the gang that can't shoot straight.  The latter controls the House and Senate, but hasn't the votes to override a veto from Pres. Bush, so we're stuck on "Go" in Iraq and the abuses associated with the war effort.

Meanwhile, the richest farmers enjoy the richest subsidies, created to bail out the family farm sector back in the 1930s when we had the Great Depression and the Great Drought, overlapping, where farmers were destroying livestock and crops because the prices they could get for their investment in time, land, and money were less than it cost to harvest the produce and haul it to market.  And, of course, Congress is unable to shut off the money tap because by now those family farms have been sold out to corporate farming interests in large part.  These become political power centers of their own which farm state politicians cannot touch in any meaningful way.  Speaker Pelosi tries to water down their influence by bringing in even more beneficiaries, such as fruit and vegetable growers in California who don't receive subsidies, but there's no money to pay for it, what with the economy going south.

So, while the nation needs change, it is quite unclear as to who it is going to lead the effort to bring it, Sen. John McCain, the GOP nominee presumptive, or either Sen. Barack Obama or Sen. Hillary Clinton, contending for the Democratic Party nomination for president, election next November.

On the question of torture of captives held by America, see the NY Times editorial of yesterday, below, and see what you think.

Not the least of its points is that "You can often tell if someone understands how wrong their actions are by the lengths to which they go to rationalize them."  It reminded me of a murder case in which I'd been appointed to represent  a man charged on the say-so of his alleged crime partner.  In other words, X, a murderer, said that my client was the real murderer.  It's sort of a get-out-of-jail-free pass, to say this when you've committed a crime; just point to someone and claim that he is equally or more responsible than you.  If the prosecution wants him more than you, you get a deal and are home free. 

The rule on obtaining convictions based on the testimony of someone also liable to be charged with the same crime is that the prosecution cannot succeed absent supporting evidence to remove the stink of the source.  Corroboration, it's called.

The problem was that the prosecuting attorney who wrote the declaration went on and on about how wonderfully detailed, and thus how presumably reliable was his star witness, the accuser of my client. 

But I knew this attorney, having worked with him for years as a fellow prosecutor.  I helped train him. 

I knew that if he had any corroboration he would have detailed it in the affidavit supporting the arrest warrant.  But there was none.  The longer he wrote on about how detailed was the statement of the accuser, the clearer it became that the prosecutor had no corroboration and no case.

That of course, was where I focused my attention and succeeded in having the case dismissed. 

Another triumph of justice, of course.  Mr. DA went on to become Your Honor, now retired to the fertile field of private judging where he doesn't have to give the case away by writing too much to too little effect.

And you thought that law was something they taught you in law school...

CONFLICTING NATIONAL NARRATIVES

We were talking yesterday about how it is that we seem never to learn from history.  Who's this "we," I wonder.  Some do, some don't.  Learn.  From experience.

Nicholas Kristof, NY Times columnist, offers a suggestion in his analysis of the U.S. and China which need to get along together but sometimes find it impossible, especially regarding Tibet.  The reason, Kristof explains is because we see China's behavior towards Tibet through the lens of our pro-human rights and anti-colonialism narrative while China sees foreign interference through its anti-national-humiliation-by-foreigners narrative stemming from when Western nations carved up China into separate spheres of influence.

When worlds collide, expect smoke and flame.

One writer has described these national narratives as "super-stories."  Israel enjoys support from American Jews but also American Christians on the political right.  Why?  There is an ancient belief in some Christian quarters that the coming of the Christian messiah depends upon the survival of the state of Israel to receive him.  Something about red calfs...

National narratives, lenses, super-stories, mind-sets, basic beliefs...we have ours and they have theirs.  It's not easy to come up with an overarching story that will satisfy both sides, other than, perhaps, "Since neither of us wishes to die, and we both want to see our children and grandchildren thrive, why don't we try to avoid killing each other?"  This doesn't always seem to work, does it, based on all of the dead bodies piled up over the last century alone, the bloodiest in history.  See WWI, WWII, Korea, Vietnam, Bosnia, PG1, Iraq, and Afghanistan, to mention the more prominent conflicts in which the U.S. has played a leading role.

The problem may not be that we are ignorant of, or intentionally disregard the lessons of history, but that we are forced to respond violently to the actual or threatened violence of other parties to the conflict.  Perhaps it is they who fail to heed the lessons of history.  Absent a mechanism for sorting out such conflicts in advance of the shooting, they persist.  The U.N. was supposed to provide such a forum and perhaps it does.  Sec'y of State Colin Powell went before the U.N. and told his lies, or believed falsehoods, a distinction without a practical difference for the rest of us.  Pres. Bush went before the U.N., too, before launching his attack on Saddam.  Unfortunately, we didn't need to ask anyone's permission to invade another country.  The objections of France and Germany were laughed off.  So here we are.  If we weren't fighting in Afghanistan (justified as the training ground of Al Qaeda) and Iraq (no WMD to date), I wonder whether we'd be fighting elsewhere.  It's hard to maintain such a huge military without exercising it from time to time, and not too hard to find a reason to do so.

My guess is that when it comes to actual conflict, we want our side to win and the other to lose.  Lessons of history count for little when engaged in an emotional conflict.  Warring couples continue to fight, the police continue to respond, the courts, prosecutors and probation officers continue to do their thing, psychologists and anger management classes continue to function, and what happens?  The couple continues to fight, unless separated by outside force, such as stay-away orders enforced by police. 

What's going on?

Just the usual, which is that we may like to think that our great tool of rational thinking controls outcomes, but the truth is that emotion runs the show.  I didn't invent this.  The statement that "emotion runs the show" is not new, but it does contain more truth than poetry.  For the reason that this is a pithy saying containing considerable truth, I'm reminded of the time when comedian Bob Hope allegedly hosted the president, vice-president, speaker of the House and secretary of state on his television show. 

"Hi, fellas," he remarked, "who's minding the store?" 

Ba-dum!

The Kristof article is below.

LEARNING FROM HISTORY

Walking through Books, Inc. on Chestnut in San Francisco with a book under my arm en route to another section to browse some more, one of the sales clerks, an older gentleman, asked what I was reading.  The book was one I'd seen favorably reviewed in the NY Times Book Review the day before and I was surprised to see it on the rack because there is often a delay between review and availability.

The book was Max Hastings's Retribution, (Knopf, N.Y., 2007) about the war in the Pacific mainly between the U.S. and Japan, with the China-Burma-India theater also of some significance in terms of British Empire, but not critical to the defeat of Japan.  Japan had invaded and captured Burma, the British colony that produced rubber (military tires), oil (military vehicles) and teak (naval vessel decks).  Britain wanted the colony back, even though the age of imperialism was dead.  The U.S. didn't want to lose American lives helping Britain recover its doomed colonies.  The Brits thought, however, in line with Kipling's "White Man's Burden," that raising the heathen to civilization and Christianity was God's mandate to the so-called White Race.

So I showed the clerk what I was reading next and remarked that I liked to read histories that show how we came to the present mess.  He replied that the one sure thing from reading history is that we never learn, do we.

That seemed a good observation which has set me to wondering.

Why, exactly, do we never learn from history?

Are we stupid?

Stupidity doesn't begin to explain it.  Churchill wasn't stupid, but he wanted his Empire back.  It was disintegrating under him, but, he famously observed, "I wasn't elected prime minister to preside over the dismantling of the British Empire."  Yet he did.  India, "the jewel in the crown," broke loose in 1947.

Americans aren't stupid, yet we get ourselves into the most god-awful messes.  We invaded Mexico and stole a lot of their land to make California, Arizona, New Mexico and did I say Texas?  And one other.  I'll think of it.  Maybe.

Why don't we learn?

Well, for one thing, we die and what we know dies with us, unless we write things down for the younger folk to read.  Will they read it?  Will they learn?  No one knows.

We have universities which teach history, culture, philosophy, technology, science, etc.  We seem to pass the science and technology parts along quite nicely.

We have the various religious institutions to pass down the generations a set of stories, characters, beliefs, and values that their adherents absorb and identify in a very strong way.

But history as an intellectual exercise doesn't make quite the same impact on our souls, does it?  Don't ask me what a soul is.  All I can tell you is that you won't find it shown in Gray's Anatomy.  It seems to mean the essence of something, or someone.  Said to to be able to survive the death or dismemberment of it occupant, or host.  I wouldn't know.

Hastings quotes U.S. General "Vinegar Joe" Stilwell:  "No matter how a war starts, it ends in mud.  It has to be slugged out -- there are no trick solutions or cheap shortcuts."

In his chapter on the British in Burma (today's Myanmar), Hastings writes, "As so often in wars, brave men were to do find and hard things in pursuit of a national illusion."

An illusion is something you believe in that isn't true.  There's a gap between the shining idea you have in your mind and reality.  If you think you can fly by flapping your arms, the leap off the barn roof will shatter that illusion.  Nature cannot be fooled, Richard Feynman said, but you can.  "The first principle," he wrote (in Cargo Cult Science, in "Surely You're Joking, Mr. Feynman") is that you must not fool yourself, but remember, you are the easiest person to fool."  Why?  Because at some level you want to believe that you can fly, and you will in fact fly, if only you believe strongly enough, like Peter Pan in J.M. Barrie's fictional work.  Tinker Bell and fairy dust do not make for the world's reality, but a children's fantasy world.  A fantasy world is a world of illusion. 

Are fantasy and illusion powerful forces in the real world?

They drive it.  They run the show.  They control countries.  They start wars.

Examples:

The U.S. holds the view that we're the best country going.  We're the tops.  We're terrific.  We're so good, being a democracy where the people choose their leaders and the laws that we live and die by.  We're so good that it is good for us to spread around this idea.  We're like Christians who believe that they have found the answer to life, the way to God, therefore everyone else should be like Christians.  So they send out missionaries to proselytize the heathen, the native, the benighted, the poor and down-trodden of the world, whether they like it or not.  Christian missionaries sent out by Spain to the New World came to save souls and get rich, not necessarily in that order.  They enslaved Native Americans, whom they called Indians, a slight error in nomenclature, along the way.

We invaded Iraq based on an illusion, the belief that he was hiding WMD.  Also he was a bad guy.  The world is full of bad guys, starting with Washington, D.C., but we don't go around invading the countries of all of the bad guys.  There's our bad guys and the other guy's bad guys.  We only want to invade their bad guys, not ours.

Hastings reports P. 73, that the British General Slim was called upon "to keep alive a dream of empire which thoughtful men knew to be doomed.  Churchill badly wanted to retrieve Burma and Malaya (today's Malaysia, rubber and tea).

"Societies run by civilians proved vastly better able to organise [sic; Hastings is British and they spell funny] themselves to fight the Second World War than those dominated by military men, of which Japan offered the most notable example."  P. 48.

"...Intelligence  was poor, because the Japanese mind-set mitigated against energetic inquiry, frank analysis and expression.

Our intelligence was never good, because few officers acknowledged its importance.  Commanders understood the need for battlefield information, but not for strategic intelligence about the big picture.

The Japanese army did not take intelligence seriously enough...we had no proper system, no analytical section, no resources...

We had no tradition of being interested in other societies and what they were doing.  It came as a shock to realize how powerful the Allies were becoming, and how much they knew about our actions and intentions.

Strategic decision-making was concentrated in the hands of perhaps twenty people, military and naval.  Even if our intelligence services had gained access to important information, it would have remained unexploited if it ran against the convictions of the decision-makers.  They would not have wanted to know.

...The greatest weakness of bushido (the Japanese code of military honor which disdained surrender but exalted death to avoid surrendering)...was that "no one was allowed to say what he really thought."  P. 49  [Japanese sources of quotations omitted].

The Western Allies (U.S. and Britain, Australia, New  Zealand, Canada) possessed advantages not only of better direction and resources, but also of language.  English, properly used, is a clear and powerful medium of expression.  Japanese, by contrast, is fraught with equivocation.  Tokyo's forces suffered chronic communications difficulties because signals were so vulnerable to misinterpretation.

There was no mistaking, however, Emperor Hirohito's broadcast circumlocution in which he told his people that the war has ended "not necessarily to Japan's advantage."

One of the reasons causing societies to go off on a self-destructive track is that when the people in control of a country have a mind-set that this is the way to go, all who differ are stifled by charges of unpatriotism, treason, and are marginalized as dissidents.  I don't know how to stop this, except to point out the advantages of free mind and expression guaranteed, to the extent we can guarantee anything, by our First Amendment.

So today, decades after the event, we have a historian and writer, Max Hastings, telling us what was wrong with Japan and Britain.  Would it have made a difference had Japan and Britain been told at the time they were going down their wrong paths that their paths were wrong?  Of course not.

If you tell President Bush, V.P. Cheney, Sec'y of State Condoleezza Rice, former Sec'y of Defense Donald Rumsfeld, and former Sec'y of State Colin Powell that invading Iraq was a wrong exercise for non-existent reasons, would they have believed you?  Of course not.  The possible exception is Colin Powell, but when the chips were down and he was given a look at the evidence supposedly justifying the invasion, he swallowed it hook, line and sinker, to his lasting discredit.  We trusted him but he wanted more to be on Bush's team than America's.  So he told the world, at the U.N. that the evidence was good and we had little choice but to accept, at least provisionally, what he claimed, which turned out to be wrong, as he has acknowledged, but Bush, et. al. have not.

This is how it goes.

Despite all the training, our minds are controlled, some at least, by cultural imperatives that require us to fall in line behind our political leaders in the name of national unity, patriotism, etc.  When these gods turn out to be false, we wonder how we got into this fix.  Dissenters at the time are ignored or put down.  Writers like Hastings have the benefit of 20:20 hindsight and we applaud their intelligent analysis, sung as a lament over the ashes of millions of war-dead, civilian and military, while we, the descendants of those who lived and died in the war are free to learn or ignore the lessons of that history.

The trick, it seems to me, is to learn the history and then become a leader.  This doesn't always happen.  Furthermore, each of us is free to draw his own lessons from what historical evidence and narrative exists.  We can't even agree on what our Constitution means, and what the Framers intended, much less the many other so-called lessons of history.

When making decisions about current predicaments, such as whether to invade another country such as Korea, Vietnam, Afghanistan, or Iraq, the nation, meaning its military and civilian political leaders, must assess the current circumstance through the lens of one's national history and experience, meaning how we understand the lessons of that past.  If burned sufficiently the last time, we may hesitate the next, but not always.

Germany was starved by naval blockade into submission and defeat in World War One.  The Kaiser, Wilhelm, abdicated and fled.  Germany was disarmed and the Rhineland demilitarized.  This was the territory between the river and France, to serve as a buffer protecting the French.  But the Germans felt betrayed at Versailles, where the treaty ending the war was forced down its throat.  Germany began secretly to re-arm.  Hitler rose to power by mobilizing the grievances triggered by the treaty.  And as soon as possible launched another war, World War Two.  The lesson Germany learned was that it did not wish to be a downtrodden former superpower when it could be a superpower by force of arms yet again.

Germany was devastated for a second time, its cities carpet bombed.  Japan was also firebombed and nuked flat.  Neither country has been a problem since then.  Before these terrible events they were terrible problems, enslaving and murdering millions of people.

If there's one thing we've learned it is that we must keep a sharp eye peeled on what the next country is doing.  We invaded Iraq on the chance that Saddam may have had WMD, and ours was a preemptive strike.

The strike succeeded in toppling Saddam.

The outcome of the effort to introduce democracy into a region dominated by a paternalistic Muslim culture for over a milenium remains to be seen.

Making the correct diagnosis as to what ails us is of critical importance for military and political leaders as well as physicians.  Jerome Groopman, M.D., about whom I've written earlier in the week (on 3-31-08) discusses why doctors fail to think straight, thus misdiagnosing, and missing, what is truly causing the malady they need to treat.  They keep making the same errors, over and over.  What kind of errors?  Thinking errors.  Doctors are made from smart, high-performing students who proceed from high school, where their intelligence is demonstrated, to the better colleges and universities, to medical school, internship, residency, fellowship, and finally private practice or other fields of practice such as academic, military, public health, etc.  So these are very smart and well-trained physicians.  We all rely on and respect them.  Yet they continue to err, as Groopman points out.  He tries to do something about it, by pointing out what kinds of errors his students, colleagues, and himself, continue to make.  Thought mistakes are usually made without a lot of attention to the thinking process itself. Much thought is given to the medical aspects of distinguishing one disease from a near-lookalike based on incomplete evidence in many cases.  But not a great deal of thought is given to the logic or completness, meaning incompletness, of one's thinking.  This is where the trouble arises.

What influences physicians most to correct their thinking? Groopman asks.  "The last bad experience," he answers.  The last bad experience is when a physician loses a patient he need not have lost given a better diagnosis, or is sued, an unpleasant enough experience.  This is what causes physicians to mind their thought processes more carefully, according to this report, to those who are thoughtful and sufficiently analytical of self and context, with or without the assistance of colleagues and other critics.

So you see that it is hard to cure people of being people, in the medical world, the political and military worlds, and in fact, just about any world.  I don't know of any group which has a monopoly on insight or intelligence, and that includes academics, philosophers, religious leaders, or whatever.  I cannot tell you on whom to rely for best analysis and answers.  It is up to you to decide who to follow, if you must follow someone, or elect someone, or to make up your own mind based on your own investigation of what seems right or wrong.

Good luck.

HOW DOCTORS DON'T THINK

The name of the book is How Doctors Think (Mariner / Houghton Mifflin, 2007, Afterword 2008, now in paperback), by Jerome Groopman, M.D., who holds the Dina and Raphael Recanati Chair of Medicine at Harvard Medical School and is chief of experimental medicine at Beth Israel Deaconess Medical Center in Boston.  He also writes on medical issues for the New Yorker Magazine.  He's been in practice for thirty years and has seen his share both as a doctor, patient, and family man.

See, here's the problem.  When a doctor says something, we tend to believe him, just as we believe the president when he says that Saddam in Iraq is hiding MD.  We then act on the advice of this expert.  We figure that he's got this privileged source of information and who are we to question him.  He, our doctor or president, would never intentionally mislead us, would he?  Of course not.

Not so fast.

If our expert, the president or our physician, has something to gain by taking a particular position, and advising us accordingly, is this misleading us intentionally?  Suppose the idiot really believes what he's saying, but is still wrong.  Off comes the wrong leg, quite by mistake.  "It was an accident."  But you're sill missing a leg, or worse, your life.

Grossman writes about this, but confines his view to the mistakes that doctors make.  Some doctors are in the pockets of the insurance companies that send salesmen to their offices to hand out gifts, fees for giving talks, underwriting research grants, junkets to expensive resorts to attend conferences, etc.  If there's a way to suborn a doctor, the pharmaceutical companies have figured out a way to play it.  It's almost as bad as federal judges being put up at expensive hotels in Hawaii to attend legal conferences, paid for by large corporations.  Do large corporations ever appear in the courts of these judges?  You can bet on it.

Suppose you're a surgeon who does three lower back fusions per week at $20,000 a pop.  That's sixty grand a week.  And suppose that the typical benefits of this operation can be achieved by another procedure costing only $5,000 each.  If you were a surgeon with kids in college, which would you recommend to a patient who has medical insurance sufficient to cover either procedure.  Why not let's go with the high-priced spread, considering that it's only the insurance company that's paying and hey, twenty grand is twenty grand.

But this is only a small part of what Grossman is calling attention to.  His main focus is on thinking errors that doctors make.

Thinking is a subject that doesn't receive enough thought.  It's been a subject of interest to me for a long time.  The only book I saved from college was Meister's "Critical Thinking."  I think it's in storage at the moment.

Critical thinking covers areas written about by Aristotle and Venn, of Venn Diagram fame.  And Boole.  Ever do a Boolean search using Google?  You're using the critical thinking as described by these folks.

The problem is that knowing about something and doing something are two different things.  Do you think that political candidates care that their ad homonym attacks are logical fallacies?  Have you ever argued logic to a court?  "The period of maximum danger is when all of the logical arguments are on your side," said Benefit Monticello.  This is the director of archeology at Pompeii, responding to an associate who told him he had nothing to worry about concerning the local city council which wanted to permit building a highway over an area to be excavated, which he opposed.

We engage in sloppy thinking, mental shortcuts, and errors in logic because it feels better.  Thinking is hard work.  It means questioning your assumptions, and who likes to do that?  Think about all the previous times when you engaged in the same type of thinking and got away with it.  What happens if you change now?  Are you admitting that you were wrong or stupid all those other times?

Suppose that you are a patient because something is wrong and not getting better, despite what the doctor prescribes.  What can you do?

Well, the first thing you need to do is to act like a lawyer in thinking about the problem and in questioning your doctor.  You need to make sure you've told him the full story of how your condition developed over time.  This may spur the doctor's critical thinking ability, which we presume exists.  He may not welcome the exercise.  I had a doctor interrupt me recently as I tried to detail an injury to my foot that was causing unusual pain when I stepped.  She was trying to tell me what the cause was before I'd finished explaining what the problem was.  When I was allowed to finish, she had another, different diagnosis and we were enabled then to deal with the real problem, not the first one that jumped into the mind of the expert.  Grossman calls this an availability error, meaning an explanation that occurs because it is fresh in the mind of the expert.  It's so "available" that it's the first thing seized upon as the likely explanation despite it happening to be wrong.  The popular expression for this might be, "When your only tool is a hammer, everything looks like a nail."

Other typical thinking errors include "Look, I found it; we can stop searching for the cause!"  Grossman calls this a "search satisfaction" error, where the first explanation that seems to explain the cause of something is taken for the only possible cause.  In medicine, there are often causes underlying the surface causes.  But these take time, effort, and money to ferret out, and why do that when we can treat this instead?  This is how physicians miss things like underlying cancer or tumors deep inside.

Did you know that radiologists, the doctors responsible for doing scans using the latest technology including X-Ray, MRI, CT, and others, often get it wrong?  They see so many of the products of the scan, X-ray images and other photos of slices of the body and its parts that they seem like a bit of a blur.  Sometimes the image is a bit blurry.  Sometimes it is out of focus.  Or the radiologist sees one thing when there is actually another that would call for attention had it not been hidden, or not prominent, or not what the observer was looking for.  There are innumerable reasons for such mistakes. Grossman calls attention to some of them.

Grossman suggests that an informed patient, aware of these difficulties among doctors, might want to ask questions such as the following, to help avoid overlooking something not seen as likely, but which might, upon further consideration, be in play:

Tell the story again as though the doctor never heard it -- what you felt, how it happened, when it happened.  Offer to retell it. Telling the story afresh  may yield new insights, or prompt looking in new directions.  P 261.

Tell him what's really frightening you.  If you fear coming down with what you don't want to express, you're engaging in magical thinking.  This is a patient's thinking error, not the doctor's.

Ask to revisit the diagnosis, especially if based on images, scans.  Tests have shown that radiologists often disagree among themselves.  Often they disagree with themselves when shown the same images at a later time.  Yesterday I saw something, today I didn't, and vice versa.

I had a case where a two-year-old, being minded by her uncle who was seated in an easy chair in the living room while the grand-parents were busy in the kitchen while the parents were at work, fell off the couch, hurting her arm.  They took her to the emergency room where the arm was X-rayed.  This is how the family, from Afghanistan, lost their child.  The radiologist saw the thin white line of a healed scar on the arm bone of this infant and called the child protective service.  Scars on bones in a child's arm can indicate that the child was abused and received a broken arm.  The child was placed in foster care in a black home where no one spoke Farsi.  The family was going nuts.  I was called.  I arranged to review the X-ray image with the chief radiologist of the nearby hospital.  He agreed that there was no scar and that even if there was, it might have been caused accidentally.  There was no fresh scar.  It took weeks for the baby to be returned.  The parents were granted visitation rights while the case was pending.  It took months to get rid of the case.  It was a false alarm.  Some medical people think that they need to "err on the side of caution" when it comes to allegedly protecting children.  The cure here was worse than the disease.

The Foxglove case resulted from medical mistake.  The medical examiner involved in investigating an alleged poison murder scheme drew a blood sample and tested it himself.  He was the only one of many laboratories to conclude that the sample tested positive for poison.  On cross-examination by yours truly  he admitted that he'd used the wrong test and drew the wrong conclusions, ending the case, not without further wrangling by a very disappointed prosecution team that had invested years and huge amounts of money in trying to prove something that never existed.

Alarm induces error.

Dr. Grossman suggests asking your physician, "What else could it be?"  This is to protect against the 'search satisfaction' error that cuts off further needed thinking.

"Is it possible that I have more than one problem?" is another way of spurring further thought along this line.  P 263.

"There's nothing wrong with you."  This is a mistake for a doctor to tell a patient who is hurting.  It means that the doctor is unable to explain why the patient claims to be still hurting.  It's a way of telling the patient "to get out of my operating room."  Such patients are sometimes called "GOMERS," as in "Get out of my operating room."  Sometimes seen after the walletectomy proves disappointing, as in no savings and no insurance to pay the freight of costly medical procedures.

Grossman concludes by saying that a medical office is not an assembly line, nor should it be a business office when it comes to treating patients.  Thinking takes time, but time is money.  Better for a physician to advise the patient that he needs time to think about the diagnosis or treatment than shoot from the hip and risk making a thinking error.  "Working in haste and cutting corners are the quickest routes to cognitive (thinking) errors."  P. 268.

About the best thing that you can do to help your doctor help you is to ask him, yourself or through a family member or friend, what is in his mind and how he is thinking about your problem.  This opens the doctors mind, to himself and to you.  "There is no better way to care for those who need my caring," he says.

I was interviewing a client in jail the other day.  The first story was such an obvious lie that I was forced to conclude that the allegations contained in the police report were far more true than false.  Caught fleeing the police along with two others following a crime spree involving multiple robbery and carjacking, followed by a high-speed chase, the story was that he was simply standing innocently on a sidewalk far from the scene when this vehicle almost ran him over, so he fled, followed by unknown assailants who wanted to kill him.  Who would want to kill you, I asked.  Lots of people, he said, but was unable to name one, or why.

Later he admitted being present, but not actively participating.

Meanwhile, a deal I was trying to make for him (called the deal of the century by the psychologist I sent out to interview him) was coming unraveled.

I visited him again to advise that when working off false facts my advice is terrible, but that when I have the truth, I can do better with the truth than others can with a lie.  This is a belief based on experience.  Truth telling is a sign of acceptance of responsibility, it often produces an expression of remorse.  The criminal justice responds better to these than to denials and lies.

Finally the young man admitted the responsibility that belonged to him and dropped the innocent bystander pretense. I was able to check him against the statements of the victims and bystander witnesses.  Now I have a chance to do something for him based on an appreciation of the relevant facts and other factors; before I couldn't.

Dr. Grossman, in an Afterword, lists some of the main errors causing misdiagnosis by physicians.  They include:  anchoring, attribution, and availability.

The constructive questioning he recommends to help the physician/diagnostician include:

1.     What else can it be?

2.     Could two things be going on to explain my problem?

3.     Is there anything in my history or physical examination or lab tests that seems to be at odds with the working diagnosis?  [To counter confirmation bias, the feeling that we have the correct diagnosis already, so why look for other explanations...even if they're correct and this isn't.  In this regard, what you, and your doctor think you have, is provisional, or a working diagnosis, unless and until something better comes along, which is what you want to be alert to investigate and consider.  There are many examples of where the working diagnosis has required correction.  It doesn't help to treat for the wrong thing while ignoring  the underlying problem.]

Grossman, citing a patient who wrote down the above three questions, calls them "a broad-spectrum antibiotic" to remedy a diversity of "bugs" in thinking.

***

I've heard it said that a student attends law school to learn to think.  Law school doesn't teach anyone how t think.  It provides examples of how others have thought, rightly or wrongly.  Which sort of thinking you choose to use on a particular occasion is up to you.  Lawyers are no more able to think clearly and accurately in all situations than doctors.

Medical school, it appears, tries to provide data and recommends some ways of thinking, such as "When you hear hoof-beats, think of horses, not a zebra." 

Nevertheless, you can carry a good aphorism too far, such as when advising a Laplander or a Chukchi (in NE Russia) to think of horses when his life depends on his herd of reindeer.  Or when there is no horse, but a zebra present.  In short, the diagnostician must thing of the rule and recognized that there are exceptions to keep a sharp eye peeled for.

REGULATING THE ECONOMY, NEXT PHASE

While the cop on the beat wasn't looking, the Wall Street Boys were stealing not only the hubcaps but the wheels of the police cruiser.

"Not my fault says the cop, who ever thought that the gang that steals hubcaps would try to steal the wheels?  That would be like killing the goose that lays the golden eggs.  No one in their right mind would take that risk.  Besides, we weren't told to look after the wheels, only the hubcaps.  So there."

Well, it looks like that in the future the police department is going to receive new authority and that the cop on the beat will receive new orders to prevent the wheels coming off the economy.  The Forbes article is below.

One of the interesting points in the article is that the feds would now like to regulate the insurance industry, now left to the states to regulate, because insurance of bond market products helps determine the size of the risk to the economy as a whole.  During the current meltdown, the insurance wasn't enough to cover the losses and Uncle Sam had to step in to hold up the dike to the tune of $30 billion.

Until now the 50 state insurance commission offices have regulated insurance, mostly auto, life, and health but not financial.  The insurance industry is opposed to federal regulation, and has been for ages.

It looks to me as though this is a national problem, regulating the nation's insurers which purport to be protecting major parts of the economy against major lines of risk, the products entering the bond and credit markets.  I don't see how the states can effectively regulate this, and if they tried, would probably meet with the constitutional law argument that individual state regulation interferes with the free common market theory of the U.S. economy whereby we cannot have a patchwork quilt of regulatory schemes, state-by-state, if we wish to have a free-flowing economy. This, of course, is the argument for congress waking up and regulating, as Treasury Secretary Paulson is recommending.  Who'd have thought that the Bush administration would favor regulating more industry.  Not me.