March 20, 2005,
The U.S. Congress and the Florida state legislature are struggling to overcome impasses in their efforts to enact laws that might save Terri Schiavo's life, or at least have her case reviewed by federal courts. But is there a more straightforward solution? Excruciatingly slow starvation and dehydration is clearly a form of torture. Torture is a crime. So why don't the state law-enforcement authorities in Florida prosecute Michael Schiavo and any person who is aiding and abetting him in carrying it out?
After the feeding tube that sustains Terri Schiavo was removed on Friday afternoon, National Review's John Miller asked a question (on NRO's weblog, The Corner) which was penetrating in its trenchant simplicity: "If somebody put a pistol to [Terri] Schiavo's head and pulled the trigger you know, to give the "dying process" a little nudge would the shooter be guilty of murder under Florida law?" Well, given that we've had no small amount of propaganda from right-to-die activists about the purported humaneness of letting Terri wither and die, why doesn't someone just shoot her or at least administer the procedure employed to execute in capital cases. It would, after all, be quicker and thus more humane, right?
It is not being done because its crude blatancy would too obviously spotlight that what's happening here is cold-blooded murder. Terri is not a person who is brain dead or a corpse being sustained by artificial means. She is alive and merely needs nutrition, like any child or incapacitated adult needs food and water. She will not be dead unless someone actually takes action to kill her. Yet, killing her efficiently, and with a comparative minimum of suffering, would interrupt the happy fiction the right-to-die people are selling: that the state is not really killing her, she's just slowly dying on her own. Of course, she is not dying on her own. Because she is incapacitated, someone has to be responsible for her; and because she is alive that someone has to do something affirmative to end her life.
That it is being done by torture rather than a gunshot simply changes the amount of time the killing will take and the degree of suffering Terri will have to endure. That Michael Schiavo is carrying this affirmative act out over, say, two weeks rather than two seconds does not change the legal reality: If it would be the crime of murder for him to pull the trigger, it is the crime of torture, and murder, for him to drag the process out to accomplish the exact same end.
The starvation and dehydration process will cause Terri extreme, sustained physical and perhaps even mental suffering. Throughout the months of Abu Ghraib fanfare, the mainstream media, the American Civil Liberties Union, and some congressional Democrats while contending that a Justice Department memorandum had shamed the United States by purportedly authorizing the use of torture against terrorists repeatedly reminded us that the legal definition of torture, at least under federal law, is "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." (18 U.S.C. Sec. 2340(1).)
That is plainly what Michael Schiavo and his helpers are committing. They have her in their custody, they are preventing anyone from providing her assistance, and though she is alive and in their care, they are denying her nutrition, which will gradually cause her immense discomfort and distress. They will putter, naturally, that it's not their intention to inflict pain but to effectuate Terri's purported "choice" to kill herself. But even if we accept this claim at face value, it speaks to motive not intent.
Legally, the two are critically different. The bank robber doesn't get out from under by claiming: "I needed the money to pay for mom's surgery." His crime is intentionally stealing the money from the bank that he purports to have had a noble reason for the robbery is irrelevant to the issue of whether he is guilty of the robbery. Similarly, people who withhold needed nutrition knowing it will cause severe pain and eventual death obviously intend the consequences of their actions. It is not a defense to a charge of torture or murder to say the victim would have wanted it that way even in the highly unlikely event that the victim really would have wanted it that way.
Federal torture laws apply only outside the U.S. Domestic torture is generally a state matter. Not surprisingly, Florida has an anti-torture law not to mention murder and murder-conspiracy laws directly applicable to Terri's situation. And it is much more expansive than the federal provision.
The law, aptly, is called "Abuse, Neglect, and Exploitation of Elderly Persons and Disabled Adults" (Florida Penal Section 825.102) [see here]. Under it, for example, it is a serious felony to cause the "[a]ggravated abuse of [a] ... disabled adult" by, among other things, "[w]illfull tortur[e]." Under the same statute, moreover, it is a serious felony if one responsible for an incapacitated adult "willfully or by culpable negligence neglects [a]...disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement[.]" And the law regards as a somewhat less serious offense, but still a felony, a responsible caregiver's "failure or omission to provide [a]...disabled adult with the care, supervision, and services necessary to maintain the...disabled adult's physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the...disabled adult."
But wait a minute, you say. The torture in this case (euphemistically referred to in the media as "the removal of the feeding tube," lest we be so impolite as to call it what it actually is) was authorized by a court. Doesn't that mean it's legal? Well, that all depends on whether the judge was directing something it was within his power to direct. A judge has no more legitimate power to order that torture take place than he does to order the moon to come up in the morning.
Let us go back to John Miller's hypothetical. Is there anyone who thinks it would have been legal for Pinellas Circuit Court Judge George Greer to order Terri Schiavo to be shot at sunrise? Of course not. He'd be indicted in a heartbeat if he tried such a thing, and the old "I was just following orders" defense wouldn't work any better for the hands-on executioner. So the question is: Is a judge any more empowered to order (or at least authorize) a torture or any other felony abuse or neglect of a disabled person than he would be to direct a shooting? Is it any more legally justifiable for Michael Schiavo and the hospice to rely on the judge's say-so to carry out a torture than it would be for them to murder her by more swift means?
I don't think so. Yes, most jurisdictions recognize what is known as a "public authority defense," which essentially comes down to saying a person acted without criminal intent because he thought his conduct was excused by directions from a public official. (For example, a federal informant who, at the direction of DEA agents conducting a legitimate investigation, buys drugs from a narcotics dealer so the agents can gather evidence on the dealer is not guilty of a crime because the agents properly authorized him to commit the act.) But generally speaking, the public official in question must have the legitimate power to permit the otherwise unlawful act or at the very least it must have been reasonable under the circumstances for the actor to believe the public official had such power. (In our example, the informant who bought the drugs would actually be guilty of narcotics trafficking if he tried to claim that he believed he had permission from, say, an IRS agent who had nothing to do with drug investigations; indeed, if the IRS agent actually did give such instructions, he'd likely be guilty of the drug crime too his authority to probe tax crimes gives him no legitimate power to cause the commission of narcotics transactions for investigative purposes.)
If a person is brain dead meaning, in layman's terms (which are the only terms on which I understand the concept), for all intents and purposes dead but still respirating by artificial means there would seem to be little doubt that a judge is empowered to discontinue the artificial means. In such an instance, the judge (and whoever pulls the plug) is not intentionally causing death or pain. Instead, death has already occurred, and it is merely the artificially supported functions that are being terminated. But, as noted above, that is not the Terri Schiavo case. She is alive; someone has to do something affirmative and intentional to snuff out that life and cause her death. That affirmative act began Friday afternoon.
But by what right? Where does it say, under Florida law, that a judge has the power to authorize the commission of felony violations of the law? A judge manifestly had no power to tell Michael Schiavo and the hospice that they could feel free to shoot or hang or over-medicate Terri to death. Why in the world to we think he had the cognate power to permit a torture?
If a federal judge told the CIA: You should feel to starve and dehydrate Khalid Sheikh Mohammed until he tells you everything he knows about the 9/11 plot, would anyone contend that that was a lawful order? Would anyone claim that the judge had the authority to override U.S. anti-torture laws? Of course not the streets would be rife with angry protesters and the editorial pages with stinging condemnation. So why are we acting as if we must simply abide a similar order from a state judge in Florida that has no purpose other than to cause enduring pain and eventual death?
Prosecution, furthermore, is an executive function, not a judicial function. If criminal laws are being violated, the state authorities charged with enforcing the law have the power to bring charges. Why shouldn't that be done here? Why shouldn't Florida Governor Jeb Bush, among others, be using his bully pulpit to demand that it be done? We know this woman is being tortured and abused. Even if you want to pretend that this was what Terri wanted, "she asked for it" is not a defense to a charge of murder or torture. Even the people saying that it is Terri's "choice to die" do not have the temerity to claim openly that it was her choice to be tortured.
A court has no power to order torture. If we start thinking about what is going on in Florida as what it is, a crime, rather than as the execution of a lawful order, law-enforcement authorities should be able to halt it forthwith. Indeed, they have a duty to do so. They should be able to issue grand-jury subpoenas, including a subpoena demanding production and preservation of Terri's body for evidentiary purposes. And they should have the discretion to charge anyone responsible for violations of the criminal law including the judge if he blatantly exceeded his authority.
The torture debate has gone on with great theater in this country for over a year. What has most offended humanitarian-law activists, so they tell us, is what they frame as the Justice Department's suggestion that the president may have the constitutional authority to ignore U.S. anti-torture laws if he deems it necessary to American national security. Is it such a reach to say that if the president of the United States does not have such authority in the middle of a war, neither does a state judge sitting in Florida at any time?
It is time to ask: What is the legal rationale for the judicial allowance of torture in Terri Schiavo's case? If there isn't one: (a) Why is it happening, and (b) Why isn't someone in handcuffs?
Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.