Monday, February 26, 2007

Physician Heal Thy Self: Saving The Wounded Is Giving Material Support To The Enemy

Post 101 is contributed by Ms. Amy Hsu.

Hello readers.
I am Amy Hsu, and I am an associate at the Law Offices of Anthony J. Colleluori and Asssociates PLLC. My practice concentrates in criminal law and appeals. As the wife of a emergency room doctor in NY, I found the case of Rafiq Sabir to be both interesting and perplexing. Allow me to elaborate:

In May of 2005, an Ivy-League educated physician (Rafiq Sabir aka "the Doctor,") was charged with agreeing to provide medical care to wounded "holy warriors" in Saudi Arabia, in an FBI sting United States v. Shah,et. al., 1-05-cr-00673 (SDNY 2005). The doctor is charged with violating 18 U.S.C. 2339B.
It states in sum and substance that:
it is a crime to provide material support or resources, namely personnel training, and expert advice and assistance as defined in 18 U.S.C. 2339A to a terrorist organization.

"Material support or resources” means “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” 18 U.S.C 2339A(b)(1).

The statute also defines “expert advice or assistance” as “advice or assistance derived from scientific, technical or other specialized knowledge.” 18 U.S.C. 2339A(b)(3).

The doctor/defendant contends that the statute (18 U.S.C 2339B) was unconstitutional on its face and as applied to him, because it deprives him of his right to practice medicine. He argues that the statute does not specifically identify what conduct of his as it relates to the practice of medicine is in violation of the statute, since the law explicitly excludes “medicine” from the list of items constituting “material support or resources.” “Medicine” and “doctor” are inextricably intertwined in the doctor’s mind.

District Judge Loretta A. Preska, Southern District of New York found the statute to be constitutional however. According to Judge Preska, the defendant is not charged with merely being a doctor or for performing medical services. Rather, his action constituted having “volunteered as a medic for the al Qaeda military, offering to make himself available specifically to attend to the wounds of injured fighters. Much as a military force needs weapons, ammunition, trucks, food, and shelter, it needs medical personnel to tend to its wounded.”

How could a doctor provide medicine without providing medical service, i.e. the giving of medicine? There is no doubt that a doctor has scientific, technical or other specialized knowledge given his years of professional training. However, it is unclear what "medical attention or advice" would be considered a crime subject to prosecution under 18 U.S.C. 2339B given that the law makes it okay to “provide medicine.” Is providing medicine legal but explaining its use or providing dosing information illegal. Would the same be true if an American doctor provided the same care to a POW?

Would criminalizing the doctor’s act be in violation of the Hippocratic oath that is held sacred by the physicians to treat the ill to the best of their abilities? What would happen if the law makes it crime for a doctor to treat serial killers? The oath Doctors take is to save the lives of others no matter how “despicable” they may think the lives are. This decision sets a bad precedent and fails to give doctors, or for that matter companies that manufacture medical goods and services, sufficient guidance to conduct themselves and uphold their obligations.

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