Thursday, November 5, 2009

Full Second Circuit will not re-hear doctor's conscientious objector case

If you practice long enough in the Second Circuit, sooner or later you are going to file a petition for en banc review. For the initiated, en banc review means that the entire Second Circuit, not the just the three judges who heard your case, decides to re-hear the case as a whole in order to set the law straight once and for all or to resolve a matter of exceptional importance. The Second Circuit rarely grants en banc review, but that does not stop people from trying.

A few months ago, the Court of Appeals ruled that a military doctor was entitled to conscientious objector status, crediting his belief that American involvement in Iraq and Afghanistan prompted him to sincerely change his mind about the morality of war. That case, Watson v. Geren, 569 F.3d 114 (2d Cir. 2009) is summarized here. The Court of Appeals held there was no basis for the army's rejection of Watson's petition, and that it would be futile to send the case back to the army for further consideration. The Second Circuit granted Watson's petition, and the case was over.

But it was not over. An active judge of the Second Circuit polled the court to see if en banc review was appropriate. Adhering to the original panel decision, the Court decided against en banc review, but not without a lengthy opinion from the judges who wanted the Court to take up the case again.

The majority says en banc review is not warranted because cases like this come around "once in a generation," hardly creating a pressing need for the entire Court to take up the issue. The Court also points out one of the criteria for granting en banc review in the first place: to clarify the state of the law, not to reanalyze the evidence in light of settled legal standards. The majority says, "We recognize that there may be differing views as to how the law should be applied to the facts in this case. But if the legal standard is correct, then the full court should not occupy itself with whether the law has been correctly applied to the facts. ... If that were the appropriate course, then our dockets would be overloaded with en banc polls contesting a panel’s examination of particular sets of facts."

Led by Judge Raggi, the judges who wanted to re-hear the case offered extensive analysis for their position. Noting that the Watson decision "concludes that it would be impossible for the agency to identify any reason with a basis in fact to support its challenged decision [against Watson]," Judge Raggi writes, "[t]he conclusion is disturbing for many reasons, not least of which are that the 'agency' in question is the United States Army and the challenged decision is the denial of a conscientious objector application, an issue on which the applicant bears the burden of proof by clear and convincing evidence and over which judicial review is 'the narrowest known to the law.'" Judge Raggi would send the case back to the army to further explain its decision to deny Watson conscientious objector status.

Enough judges sit on the Second Circuit that you have to believe that cases that win through one three-judge panel could very well lose if a different panel heard the case. If Judges Raggi, Cabranes, Jacobs and Livingston initially heard the appeal, Watson probably would not receive conscientious objector status. Judge Raggi summarizes Watson's position. He is a radiologist who opposes all war because all human life is sacred and war is a futile means of resolving human disputes. Yet, Judge Raggi suggests, the army could very well reject Watson's story because he would not serve in a combat role but, instead, he would save lives. To Judge Raggi and the others who signed on to her opinion, it is quite a stretch for Watson to object to his role.

The Army might reasonably identify an inconsistency between this opposition and Watson’s professed belief in the inviolable sanctity of every human life, the core of his personal moral code. Watson submits that there is no inconsistency because he is not suggesting that wounded American soldiers should be left to die; he is simply refusing himself to play any part in their treatment. He expects that other doctors – presumably with less refined moral codes – would provide the treatment necessary to save soldiers’ lives. It would hardly be irrational for [the army] to reject this tortured reasoning. If a person sincerely believes an act is immoral, then the person might reasonably be expected to believe that the act is immoral no matter who commits it. I am hardly suggesting that Watson should believe it immoral for any doctor to treat wounded American soldiers, a position that necessarily leads to the breathtaking conclusion that it is morally preferable for such wounded Americans to die for lack of medical care than for any doctor to play a part in their “weaponization.” I am noting simply that Watson’s effort to have it both ways, refusing to treat wounded soldiers himself but not opposing treatment by others – thereby denying the possibility of, and avoiding responsibility for, the loss of soldiers’ lives – exposes the shallow moral foundation of his claim to conscientious objector status.

Judge Raggi's opinion gets even more interesting when she talks about Watson's opposition to all war in the context of the Iraq and Afghanistan Wars. She suggests that the Army could question Watson's belief that war is "an entirely shameful endeavor" because, while "the particular war actions that he references [Iraq and Afghanistan] are ones subject to easy condemnation or, at least, to present debate," this only begs the question: whether "he also views as 'shameful' those war actions generally recognized for their liberating effects," such as Lexington and Bunker Hill, Iwo Jima, the Civil War and the liberation of concentration camps in World War II as "missing from Watson's list of shame."

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