Experimentation on captive prisoners? Conducted by doctors? On orders from the US government?
Some of this evidence has already emerged. A report leaked in April from the International Committee of the Red Cross suggested that health professionals had been involved in some way with interrogations of detainees held at a variety of black sites throughout the world. Documents released under the Freedom of Information Act had revealed that lawyers in the Bush administration Department of Justice used information collected by health professionals during interrogations. But neither Congress nor Obama’s Department of Justice cared to investigate.
Now Physicians for Human Rights’ new report "Experiments in Torture: Evidence of Human Subject Research and Experimentation in the ‘Enhanced’ Interrogation Program," puts the evidence together in a way that raises profound questions about possible US government involvement in this most heinous of crimes. It documents that doctors, psychologists and other health professionals were not only observing interrogations but gathering information from them, analyzing it and providing it to government lawyers.
This report reveals that these practices may have created criminal liability for the interrogators under national and international law. It establishes that government lawyers used the results of these studies to design legal defenses against possible criminal charges against interrogators—and against those who gave them their orders. And it explains why the Bush administration promoted certain previously inexplicable amendments to the wording of the War Crimes Act.
In the wake of the 9/11 attacks, the Bush administration decided it wanted to engage in what had up till that time been recognized as torture. It issued a "finding" that the Geneva Conventions did not apply to Taliban and Al Qaeda prisoners, and began authorizing what it redefined from "torture" to "Enhanced Interrogation Techniques" (EITs).
But it still had a problem. Torture of anybody under any name was illegal under US and international law, and was condemned as an ethical violation by medical and other professional codes. Further, since torture had been illegal, there was little knowledge of how to do it effectively. The solution? Call medical science to the rescue.
Take waterboarding as a case in point. The CIA’s Office of Medical Services (OMS) issued guidelines for waterboarding, but it noted, "A rigid guide to the medically approved use of the water board in essentially healthy individuals is not possible….The following general guidelines are based on very limited knowledge."
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CIA officials ordered their Office of Medical Services to collect information on waterboarding to "best inform future medical judgments" about it. Medical personnel were required to monitor and document all EIT practice.
In the case of waterboarding, OMS health professionals were directed to record:
how long each application (and the entire procedure) lasted, how much water was applied (realizing that much splashes off), how exactly the water was applied, if a seal was achieved, if the naso- or oropharynx was filled, what sort of volume was expelled, how long was the break between applications, and how the subject looked between each treatment.
Then such results were used to guide future waterboarding practices. For example, "based on advice of medical personnel," OMS teams replaced water with saline solution.
Principal Deputy Assistant Attorney General Steven G. Bradbury wrote the CIA: "We understand that these limitations have been established with extensive input from OMS, based on experience to date with this technique and OMS’s professional judgment that use of the waterboard on a healthy individual subject to these limitations would be ‘medically acceptable.’ "
Bush administration lawyers in the Justice Department’s Office of Legal Counsel (OLC) used the results of such medical experimentation to redefine acts previously recognized as torture to be "safe, legal and effective." The physicians’ role would provide a potential legal defense against criminal liability for torture. The experimentation would demonstrate "good faith" in trying to prevent the prohibited level of harm, and subsequent medical monitoring would demonstrate a lack of intent to cause harm to subjects, according to OLC memos.
EIT involved many other techniques previously defined as torture, and officials wanted to know the effects of combining these techniques. The OMS observed twenty-five detainees subjected to "combined techniques" to determine their "susceptibility." The results?
"No apparent increase in susceptibility to severe pain has been observed either when techniques are used sequentially or when they are used simultaneously–for example, when an insult slap is simultaneously combined with water dousing or a kneeling stress position, or when wall standing is simultaneously combined with an abdominal slap and water dousing."
"OMS doctors and psychologists, moreover, confirm that they expect that the techniques," when combined, "would not operate in a different manner from the way they do individually, so as to cause severe pain."
The OLC then used such "findings" to construct a defense for interrogators. A 2003 memo by Deputy Assistant Attorney General John Yoo explained how "a defendant could show that he acted in good faith" by such steps as "reviewing evidence gained from past experience." These steps "would show that he has drawn on the relevant body of knowledge concerning the result proscribed by the statute, namely prolonged mental harm."
Assistant Attorney General for the Criminal Division Michael Chertoff told Yoo in 2002: "The more investigation into the physical and mental consequences of the techniques they did, the more likely it would be that an interrogator could successfully assert that he acted in good faith and did not intend to inflict severe physical or mental pain or suffering."
Problem solved, but not for long. In 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applied to all prisoners, even those the US declared to be "unlawful combatants" rather than "prisoners of war." Suddenly, the perpetrators of "Enhanced Interrogation Techniques" became potential war criminals if they had engaged in "cruel treatment and torture" or "humiliating and degrading treatment." And the medical experimenters could be charged with "grave breaches" of the Geneva Conventions’ prohibition of "biological experiments."
This put them at risk for criminal prosecution under the US War Crimes Act. That act, passed by a Republican Congress in 1996 and initially intended to shake a fist at Saddam Hussein, made it a crime under domestic US law to commit "grave breaches" of the Geneva Conventions.
Immediately following the Hamdan decision, the Bush administration inserted a revision of the War Crimes Act into the 2006 Military Commissions Act. It replaced the original incorporation of Geneva protections into US law with a limited list of specific prohibitions. That opened loopholes to protect medical experimentation, among other abuses.
For example, all four Geneva Conventions flatly prohibit "biological experiments." The revised War Crimes Act instead criminalizes someone who subjects another to "biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons." This tortuous language would allow medical experimenters to claim in court that they were acting on a "legitimate" purpose–for example, to perform scientific research on pain–even though the experiment was directly harmful to its victim. Or they could claim that waterboarding, sleep deprivation, and other EITs, however painful, did not endanger their victim’s "body or health." Significantly, the changes in the law were made retroactive so as to protect perpetrators from prosecution. They are still in effect.
Despite Bush and Cheney’s open bragging about their support for waterboarding, President Obama has thus far refused to seriously investigate the Bush Administration’s crimes. Early in 2009 there was hope of action, especially the Justice Department’s review of Bush Justice Department’s Office of Legal Counsel infamous torture memos. But hope faded as OLC lawyers John Yoo and Jay Bybee were deemed to have exercised "poor judgment" rather than complicity in war crimes.
In Congress, Senator Patrick Leahy spent early 2009 trying to gather enough votes to create a bipartisan commission to investigate Bush-era US torture policy and, if stalled, conduct his own inquiry in the Senate Judiciary Committee. But there’s been little to no activity for over a year.
Many people will wonder what would lead a doctor, sworn by an ancient oath to "do no harm," to stand by unprotesting as helpless captives were waterboarded and calmly record "if a seal was achieved" and "if the naso- or oropharynx was filled." Or who would report to those ordering the infliction of pain that there was no apparent increase in "susceptibility to extreme pain" when "an insult slap is simultaneously combined with water dousing or a kneeling stress position, or when wall standing is simultaneously combined with an abdominal slap and water dousing."
Dr. Robert Jay Lifton, who studied and interviewed doctors involved in past medical experimentation that inflicted severe pain on non-consenting captives, found that they had been subject to a process he called "socialization to evil."
The Physicians for Human Rights report calls for investigations by Congress and the Justice Department, a halt to any ongoing experimentation on detainees and restoration of the War Crimes Act. But the report itself illustrates a critical point: we don’t have to wait for government to investigate such crimes.
Human rights groups and others in civil society have the capacity to take the initiative when government lags in upholding the law. For example, religious leaders organized by the National Religious Campaign Against Torture are responding to the PHR report with a campaign for a comprehensive federal Commission of Inquiry into torture and medical experimentation on detainees. Perhaps they can lead the way in "socialization to good."
