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Near-Death Experience: Vermont End-of-life Bill Lives Another Day 

Fair Game

Vermont’s long-simmering debate over whether to allow terminally ill patients to end their own lives shifted subtly, but significantly, on Tuesday.

For the first time, the full Senate took up and debated a bill permitting doctors to prescribe a lethal dose of medication to those suffering from terminal illness. And for the first time, 17 of the Senate’s 30 members voted in favor of debating — and amending — the bill further.

To be clear, Tuesday’s 17-13 vote means only that the Senate rejected a judiciary committee recommendation to kill the bill.

The body still must cast two more votes in favor of it — and myriad expected amendments could fray the fragile coalition that moved it to this point. Even if the Senate passes the bill, it’ll still have to survive a vote in the House.

But let there be no question: Tuesday’s vote was a watershed moment.

All four members who professed to be on the fence— Sen. Don Collins (D-Franklin), Sen. Peter Galbraith (D-Windham), Sen. Bob Hartwell (D-Bennington) and Sen. John Rodgers (D-Essex/Orleans) — voted in favor of moving the bill forward.

In casting his vote, Hartwell made clear that he continues to have serious reservations — and any of the four fence sitters could yet change course. But now that each has cast a vote in favor of the bill — even a procedural one — they are far less likely to vote against it later this week.

Tuesday’s debate drew a standing-room-only crowd to the Senate chamber. Advocates on either side of the issue — wearing stickers denoting their support or opposition — sat in rapt silence as senators held forth from 9:30 in the morning until 3:30 in the afternoon, with just a short break for lunch.

The debate starred two characters that have fought for years on either side of the question.

In one corner stood Sen. Claire Ayer (D-Addison), whose Senate Health and Welfare Committee voted unanimously two weeks ago in favor of the bill. A nurse by training, Ayer confidently beat back probing questions posed by the bill’s opponents.

Her point was simple: The choices available to terminally ill patients — starvation, refusal of medicine, deactivation of medical devices or terminal sedation — are unsatisfactory. Enabling such patients to end their own lives after consulting with doctors and in the presence of family simply adds another, more palatable option.

“It’s so unfortunate that our laws leave Vermonters with these pathetic choices,” she said. “No one should be forced to die alone. Life is sad enough at that point.”

In the other corner stood Sen. Dick Sears (D-Bennington), whose Judiciary Committee reached the opposite conclusion last week, voting 3-1 against the legislation, with one member who supports the bill absent.

Gruff by nature, the veteran legislator sought to poke holes in the bill, section by section. He wondered whether the disabled or the poor might be pressured to end their own lives. He questioned whether doctors should be put in the position of prescribing lethal medicine — or of signing a death certificate that fails to note a self-administered cause.

Invoking the “Newspeak” of George Orwell’s 1984 — “War is peace, freedom is slavery, ignorance is strength” — Sears said, “Can we add to that, ‘suicide is death with dignity?’”

Hours later, the Senate’s resident professor of literature, Sen. Philip Baruth (D-Chittenden), responded to the Bennington Democrat’s literary reference, noting that Newspeak was the language of a totalitarian society.

“The antidote to that,” Baruth said, “is free debate.” By voting in favor of the Judiciary Committee’s negative recommendation, he argued, senators would be squelching such discussion.

Both sides summoned the memories of beloved politicians whose lives came to an end after suffering from a terminal illness.

Reading from a letter written by the widow of former Massachusetts senator Edward Kennedy, Sears argued that Kennedy long outlived his prognosis, accomplishing much in his final months.

Ayer, in turn, read from a letter written by Jean Mallary, whose husband, former Vermont congressman Richard Mallary, took his own life in the final stages of a fight with cancer. Both Mallarys had lobbied legislators to pass a bill like the one debated Tuesday — they were even featured in a television commercial supporting it — but it didn’t gain traction in the Senate in time for Mallary to take advantage of it.

As a result, Ayer said, the longtime lawmaker felt compelled to end his life without family, friends or a physician present — in order to protect them from prosecution.

“Dick didn’t deserve to be alone,” Ayer said, quoting Jean Mallary’s letter. “Nobody does.”

Drone Zone

Sen. Patrick Leahy (D-VT) may be third in line for the presidency, but even he can’t get his hands on a top-secret legal memo justifying the targeted killing of expatriate American citizens suspected of terrorism.

It ain’t for lack of trying.

Shortly after a CIA drone strike killed the American-born cleric Anwar al-Awlaki in September 2011, Leahy called on the Department of Justice to provide him with the memo authorizing such strikes. When none was provided, Leahy pressed Attorney General Eric Holder at a November 2011 hearing of the Senate Judiciary Committee, which Leahy chairs.

“Is there any problem with providing this committee with a copy of that memorandum, even if it is required to be in a classified session?” Leahy asked Holder.

“Well, I first want to indicate that I will not address — cannot address — whether or not there is an opinion in this area,” Holder responded. “But I understand, Mr. Chairman, your interest in this subject, and we are committed to working with you to answer your questions in an appropriate setting and to the extent that we can.”

Holder’s dodge notwithstanding, the memo’s existence had been widely reported even back then. But it wasn’t until last week that the Obama administration publicly acknowledged its existence.

That came after NBC News’ Michael Isikoff obtained a 16-page white paper summarizing the secret memo’s legal arguments and published it online last Monday night. The document confirmed that “informed, high-level” U.S. officials could order the killings of American citizens believed to be “senior operational leaders” of al-Qaida or an affiliate — if they posed an imminent threat and capture was unfeasible.

Though Leahy and 10 other senators had written to Obama again earlier that day demanding the memo, it wasn’t until Wednesday — the eve of CIA director nominee John Brennan’s confirmation hearing — that the administration agreed to hand it over. And even then, they only agreed to give it to members of Congress’ two intelligence committees — not to Leahy and his Senate Judiciary Committee.

So the next day Leahy and Sen. Chuck Grassley (R-Iowa), the committee’s ranking Republican, pressed Obama again.

“The deliberate killing of a United States citizen pursuant to a targeted operation authorized or aided by our Government raises significant constitutional and legal concerns that fall squarely within the jurisdiction of the Committee,” they wrote, noting that their committee oversees the Office of Legal Counsel, which produced the memo.

By the time Seven Days went to press, Leahy spokesman David Carle said the chairman still hadn’t received an answer from the White House.

What exactly would Leahy do if he got his hands on the memo?

“Congress is still trying to get the basic facts,” Carle said. He added that Leahy plans to hold a Judiciary subcommittee hearing to discuss the matter.

Over the weekend, The Hill reported that Sen. Dianne Feinstein (D-Calif.) said Leahy and Grassley indicated “their concern and interest” in establishing a special federal court charged with overseeing drone strikes. But Carle would not comment on whether Leahy does, in fact, support such a plan.

Leahy’s not the only member of Vermont’s federal delegation concerned about the administration’s unfettered use of drone strikes — and its lack of congressional oversight. Like Leahy, Sen. Bernie Sanders (I-VT) declined to speak with Seven Days, but he said in a written statement that Congress must “develop in one form or another a process through which decisions are reviewed beyond the White House.”

Sanders isn’t just concerned about strikes on American citizens.

“In my view, a lot more attention has to be paid to the morality and the damage to our image that the killings of innocent civilians by drones has had,” he wrote.

That’s an opinion shared by the third member of Vermont’s delegation, Congressman Peter Welch (D-VT).

“Will drone strikes become a substitute for the serious, ongoing, necessary work of diplomacy?” Welch said in an interview. “If there’s a military option, the tendency is to rely on it often times at the expense of the diplomatic option, and there are legitimate political questions about what’s the impact of drone strikes.”

Welch and 24 other House members made a similar point in a letter they sent to Obama last June requesting more details about how the administration chooses the targets of its drone strikes — and how it avoids civilian casualties.

“The implications of the use of drones for our national security are profound,” Welch and his colleagues wrote. “They are faceless ambassadors that cause civilian deaths, and are frequently the only direct contact with Americans that the targeted communities have. They can generate powerful and enduring anti-American sentiment.”

Welch said that in order to “maintain checks and balances,” Congress should “actively explore” the notion of establishing some sort of federal court to oversee drone-strike targets, and he believes the program should include “some limited congressional consultation.”

“We can’t have a system where we make one individual judge, jury and executioner,” he said.

Has Congress — and especially congressional Democrats — given Obama more leeway to expand the nation’s drone program than it would have given President George w. Bush, as many critics have suggested?

Perhaps a little, Welch said, but for good reason.

“We have a much greater degree of confidence in President Obama — and it’s not just because he’s a Democrat,” Welch said, noting that Obama pulled American troops out of Iraq and is now winding down the nation’s role in Afghanistan. “So there’s some basis for people like me to have much more confidence in the decisions that President Obama has made in his role as commander in chief than what President Bush made.”

But, he added, “I think all of us have to acknowledge that this can’t be based on who happens to be in office. It has to be on what’s a sensible policy that adheres to the system of checks and balances our country is founded on.”

Disclosure: Paul Heintz worked as Peter Welch’s communications director from November 2008 to March 2011.

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Paul Heintz

Paul Heintz

Bio:
Paul Heintz is Seven Days' political editor. He writes the weekly column, "Fair Game."

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