an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It had seemed, at least until late last week, that intervening events had taken most of the attention away from one of the most significant controversies of President Obama’s first year in office—whether senior Bush Administration officials should be investigated for their role in the documented torture and other abusive treatment of non-citizens detained as terrorism suspects. President Bush himself may have rekindled the controversy with his surprisingly candid comments about waterboarding, but that pales in comparison to the implications of a new report, released this morning by Physicians for Human Rights (PHR) (and available through this link).
In the report, titled “Experiments in Torture: Evidence of Human Subject Research and Experimentation in the 'Enhanced' Interrogation Program,” PHR marshals strong evidence that doctors working for the U.S. government conducted “illegal and unethical” human experimentation and research on detainees in CIA custody. In particular, the report concludes that
Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity.
In other words, because medical professionals were intimately involved in the EIT program, and appear to have used prior experiences with individual detainees to suggest ways of increasing the effectiveness of the techniques going forward, these individuals were effectively conducting the very kind of research and experimentation that ethical codes, federal regulations, and international law all prohibit.
The Report is quite clear that many of its conclusions are based on inferences and other circumstantial evidence (much of the crucial information remains classified), and avoids reaching final conclusions as to whether any of these codes, rules, or laws were broken. Nevertheless, as the Report concludes, "a comprehensive federal investigation is required to answer the questions this evidence raises."
Regardless of whether the EITs themselves were violations of federal or international law (on this point, at least, I don't imagine I'll convince anyone of a view distinct from that which they already have), there seems far less room for debate over the propriety of human subject research and experimentation. The so-called "Common Rule," which applies to the CIA and the Department of Defense (along with a number of other major federal agencies), bars such research without the consent of the subject. And the United States was not just instrumental in creating the body of international law that prohibits the practice; it was a U.S. military commission at Nuremberg that tried 23 Nazi officials (20 of them doctors) in the "Doctors' Trial" after World War II, convicting 16 of the defendants (and executing seven) for war crimes and crimes against humanity arising out of their involvement in medical experimentation on, inter alia, concentration camp internees. In the process, the Nuremberg Military Tribunal (NMT) articulated what has since become known as the "Nuremberg Code"--10 principles to set the permissible boundaries of human subject research. We, in other words, set the precedent that such conduct by medical professionals is more than just unethical and illegal, but is in fact a war crime. [And then we watered down the War Crimes Act in the Military Commissions Act of 2006, but I digress . . .]
Given that so much of the critical information remains classified (including, as the PHR Report notes, the unclear role of OLC with regard to the medical professionals), it would be imprudent to speculate on what specifically happened, or who may actually be liable. The larger point, though, is that these charges only reinvigorate a point that I'm neither the first nor last to make: We still don't know what we don't know about the EITs, about who was behind them, and about how they were implemented. Thus, this Report is not about the well-worn debate over whether or not torture was committed, or, alternatively, whether individual techniques constituted "torture." Regardless of the legality of the individual interrogation techniques, any non-consensual medical experimentation would have been against both federal and international law. And as PHR's Report concludes,
The use of health professionals to monitor intentionally harmful interrogation techniques places them in the service of national security objectives which are in conflict with the interests of those who they are monitoring. The result has been a co-opting of health professionals by the national security apparatus and a violation of the highest medical admonition to “do no harm.” Until the questions examined in this paper are answered and, if ethical violations or crimes were committed, those responsible are held accountable, the misuse of medical and scientific expertise for expedient and non-therapeutic goals jeopardizes the ethical integrity of the profession, and the public trust in the healing professions risks being seriously compromised.
"Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law."
That seems like a stretch. Collection of clinical data isn't the same as "experimentation." Here's an analogy. A doctor in a regular U.S. prison collects data on results of solitary confinement. He discovers that inmates who are held more than six months in solitary confinement suffer a dramatic decline in life expectancy. He publishes the results, and urges prison administrators to cap stretches in solitary confinement at six months. Is he guilty of "experimenting on human subjects without their consent"? That's laughable.
I have to agree with Sean. It seems that this all depends on whether the EITs were torture. I'm not familiar with the Nuremburg Codes, but I can't imagine that, under them, a lawful act would become unlawful just because a doctor was watching. That seems like an absurd result.
Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations.
And the point is?
Physicians and medics routinely monitor SERE, Special Forces, Ranger, SEAL and other military training, intervene when the health of the trainee is endangered and provide ongoing after action reports to be applied to future training.
The purpose of both the medical supervision in military training and the CIA interrogation derived nearly entirely from SERE training is to protect the health of the trainee/prisoner.
Rather than being "illegal or unethical," this supervision and feedback would appear to conform to the ethical standards of the medical profession.
Is PHR suggesting that CIA should be freed from medical supervision and restrictions during interrogation? We saw the results of that approach when CIA contractors ended up killing some prisoners in Afghanistan early in the war.
It is suggested other accounts, including the interview over at Democracy Now! today, be looked into. This is not just about doctors "watching," but actively being involved in various respects. The book cited by Patrick O'Donnell is an in depth earlier resource.
But, yes, the reference to Dr. Mengele is ill advised. The Nazi precedent set firm limits, but any comparison is an ill fit, even if we agree wrongdoing or unethical behavior was in place.
Am I correct that the body of Prof. Vladeck's post makes no mention whatsoever of Dr. Mengele; that the only reference to Dr. Mengele appears in the title to the post? Yes, titles serve to get the attention of potential readers. Can any of the unnamed physicians described in the post establish that they have been defamed by the attention getting title by being compared to Dr. Mengele? Maybe there is a lawyer is Colorado prepared to take on such a claim, but I would suspect that he would be influenced by second hand fumes from his clientele as well as by his adulation of everything Bush/Cheney, John Yoo, Glenn Beck, etc.
Steve, there's no need of the demand for a retraction made by a NOAGN.*
I'm not familiar with the Nuremburg Codes, but I can't imagine that, under them, a lawful act would become unlawful just because a doctor was watching. That seems like an absurd result.
It's not that the lawful act itself becomes lawful; it's that there are issues of medical ethics that may apply even if the act is lawful. There is an analogous debate over whether doctors may assist in executions (which are, of course, lawful).
It seems that this all depends on whether the EITs were torture. I'm not familiar with the Nuremburg Codes, but I can't imagine that, under them, a lawful act would become unlawful just because a doctor was watching
Well, since there's no debate that EITs WERE in fact torture, than we can just move on to the next question about the doctors, right?
Really, the only reason there's a "debate" about EITs is because we are the most powerful nation in the world.
If we were Panama, Bush, Cheney et al would be enjoying lunches at the Hague as we speak.
Is PHR suggesting that CIA should be freed from medical supervision and restrictions during interrogation?...
How about the CIA shouldn't torture, and medical personnel shouldn't aid and abet such, including providing assistance of any kind? No one here is complaining that they didn't try to provide treatment for any injuries sustained by the detainees. What they did provide is feedback on how to make the torture more effective.
... We saw the results of that approach when CIA contractors ended up killing some prisoners in Afghanistan early in the war.
How many of the dozens of murders while in captivity have been prosecuted? In how many of these have actual murder charges been brought? I think the problem here lies elsewhere.