No Comment — April 7, 2009, 9:51 am

The Torture Doctors

This morning both the Washington Post and the New York Times take a close look at the February 2007 Red Cross report (PDF) dealing with the CIA’s use of the “Bush Program” on a group of fourteen detainees held at black sites. They come to the same conclusion as to what’s “newsworthy” in this report. Here’s the Times’s Scott Shane:

Medical personnel were deeply involved in the abusive interrogation of terrorist suspects held overseas by the Central Intelligence Agency, including torture, and their participation was a “gross breach of medical ethics,” a long-secret report by the International Committee of the Red Cross concluded… Red Cross investigators concluded that medical professionals working for the C.I.A. monitore d prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.

Facilitating such practices, which the Red Cross described as torture, was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill treatment.”

The Post’s Joby Warrick and Judy Tate highlight the broader scope of the role of medical professionals in administration of the torture regime:

Health personnel offered supervision and even assistance as suspected al-Qaeda operatives were beaten, deprived of food, exposed to temperature extremes and subjected to waterboarding, the relief agency said in the 2007 report… The report quoted one medical official as telling a detainee: “I look after your body only because we need you for information.”

The Red Cross called the process a gross violation of medical ethics. But no one who has closely followed the story of the Bush Administration’s introduction of torture techniques is surprised by any of this. Back in 2005, in reviewing the Rumsfeld Pentagon’s newly released DOD Policy Directive 3115.09, I noted that comparing the Rumsfeld rules with those in place for more than a century revealed some disturbing problems. Chief among them was that the Pentagon was suddenly at war with professional ethics. A primary objective of the 2005 revision was to ensure that medical and legal professionals abandoned their ethics rules when they went to work for Donald Rumsfeld and instead abided by the rules of his Pentagon. No prior defense secretary had challenged these professional ethics—to the contrary, they had insisted that medical and legal professionals uphold their ethics rules. The Red Cross report provides vivid examples of what this struggle was all about.

The dealings in the “black sites” were, of course, principally led by CIA. The Red Cross report therefore serves again to cast some light on the extremely shadowy dealings between the CIA and the prior leadership of the American Psychological Association, which plainly struggled to provide ethics cover for psychologists who participated in the torture operations. The APA threw out its prior leadership and embraced a stronger anti-torture stance in a series of membership votes taken in the past year, following disclosure of the ties to the CIA and the Bush Program. Still, Obama’s CIA director, Leon Panetta seems resolved to protect the torture doctors at all costs. The Times quotes CIA spokesman Mark Mansfield: “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Hence the architecture of the Bush torture system is respected: the torture lawyers protect the torture doctors.

But this architecture is fundamentally flawed. First, quite apart from what the law requires, the medical professionals were required to act in accordance with established standards of professional ethics. The conduct disclosed in the Red Cross report would plainly constitute cause not merely for prosecution, but also for revocation of medical licenses. The fact that Bush Administration lawyers wrote made-to-order memoranda saying that the perpetrators didn’t need to worry about prosecution has no bearing on this point–to the contrary it probably provides more evidence of conscious wrongdoing, especially after the memos were exposed and uniformly condemned by the legal community.

Note the utter irrationality of the official CIA statement. How does one know that the doctor’s conduct was “based on legal guidance” without conducting a full investigation? This is a legal affirmative defense, which it is the accused’s burden to plead and establish. It has not been successfully pled and established in a single case (in military courts-martial, the military judge required those attempting to assert it to prove that they had actually received, read and relied upon the Justice Department memoranda—a standard which, if continued would probably eliminate the defense entirely).

America has an interest in checking the reintegration of the torture doctors back into American society. Would you want a parent to seek treatment from a healthcare professional who has so flagrantly disobeyed his profession’s chief directive? The Red Cross’s guidance on this point could not have been more explicit. “Investigate the crimes and punish the perpetrators.” Prosecution can wait. But we deserve to know who committed these wrongs.

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