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Above the Law - Literally

Today was the deadliest day ever on Mt. Everest. Thankfully, a close friend of mine who is a guide with a dozen prior ascents, half from Nepal, half from China, was among the rescuers rather than the casualties. This isn't his first tragedy on the world's tallest peak, or its close rivals. And it isn't the first tragedy on Mt. Everest.

The most famous book about the 1996 disaster, Into Thin Air, launched Jon Krakauer's fame as a best-selling writer and a whole generation of altitutude junkies. It asked ethical questions that raise legal questions that remain unanswered and perhaps unanswerable except by people confronted with circumstances wherein a bad wind, a bad day, an extra minute or a wrong move mean death.

What duty do climbers and guides owe to help or rescue one another when the risks of serious injury and death to themselves are incredibly high and often near certain given the inherently dangerous environment and conditions and unpredictable nature of both? Is it unethical, if not criminal, to leave someone who is still alive on the mountain to die if rescuing them would almost certainly expose the would be-rescuer to death? At what level does a judgment call in a context where mental impairment is routine and weather conditions extreme rise to the level of civil or criminal liability? Who decides? Who is qualified to judge? How does one fairly evaluate their decisions made with oxygen deprived minds and in an incomporable environment? Do people who undertake these expeditions assume the risk that they will be left behind if its a close call? What investigation should be undertaken to verify the survivors tale?

In the 1951 Cary Grant movie, People Will Talk, one character, Shunderson, spent fifteen years in prison for a murder he did not commit. His wife's paramour and he went mountain climbing and only Shunderson came down, so it was assumed that he killed the man - given the love triangle. The investigation was apparrently inadequate as Shunderson was sent to prison and upon his release discovered the man in a cafe. This time, Shunderson killed him. He took the position that he had already been punished for killing the man once and could not be punished a second time. He was wrong.

Life does not always imitate art. A woman recently admitted and was sentenced to pushing her husband off a cliff in Montana. And not all cases, even with admissions, establish legal liability. Though traffic on Everest increases with each season, any 8,000 meter peak is an extreme environment - often a fatal one. In fact, a man central to the 1996 disaster whose actions were the subject of apparrent criticism in Krakauer's book later died on another mountain. Though he thoroughly and publicly disputed the criticism of him and was also widely defended by other experienced climbers and guides, the controversey remains in print for readers to decide for themselves. Re-examining the decisions and actions of people who literally live on the edge may be a fool's errand. What one expert may do on a given day in extreme conditions in the world's most extreme environment may be different from others. And the number of people qualified to opine could probably all fit in a passenger van. My friend is one of them.

He and his wife agreed a long time ago that one day she would probably get a call. And he would probably spend eternity in a cold and rocky grave. They've accepted that it's a matter of weather, not whether. They live with that. As the old saying goes, "someday the mountain might get'em but the law never will."


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