Medical professionals who were involved in the Central Intelligence Agency’s interrogations of terrorism suspects engaged in forms of human research and experimentation in violation of medical ethics and domestic and international law, according to a new report from a human rights organization. Doctors, psychologists and other professionals assigned to monitor the C.I.A.’s use of waterboarding, sleep deprivation and other “enhanced” interrogation techniques gathered and collected data on the impact of the interrogations on the detainees in order to refine those techniques and ensure that they stayed within the limits established by the Bush administration’s lawyers, the report found. But, by doing so, the medical professionals turned the detainees into research subjects, according to the report, which is scheduled to be published on Monday by Physicians for Human Rights.
The data collected by medical professionals from the interrogations of detainees allowed the C.I.A. to judge the emotional and physical impact of the techniques, helping the agency to “calibrate the level of pain experienced by detainees during interrogation, ostensibly to keep it from crossing the administration’s legal threshold of what it claimed constituted torture,” the report said. That meant that the medical professionals crossed the line from treating the detainees as patients to treating them as research subjects, the report asserted.
Perhaps the most astonishing and perverse fact about the CIA’s human guinea pig program is that it was set up on the advice of the Department of Justice as a tactic for evading accountability for other crimes. Once again, we see strong evidence that the Bush Justice Department counseled other actors in the government to commit serious crimes and assured them that they would face no threat of prosecution for their criminal conduct. Under accepted norms of criminal law, this would implicate the Justice Department itself in the crimes of conspiracy or joint criminal enterprise connected both with the underlying torture and the human experimentation.
Both the Bush and Obama Administrations have taken steps to obstruct investigations into the identity of medical personnel involved with torture at Guantánamo and in the CIA black site system. Their efforts have reached into the handful of ethics violations cases pending with oversight bodies, including those in Ohio, Louisiana, and California, where U.S. government sources routinely refuse to supply information that would shed light on what medical personnel did. As Harper’s reported with respect to the deaths in detention of three prisoners four years ago—deaths which the U.S. Government persists in calling suicides–the government refused even to disclose the identities or professional qualifications of medical personnel involved in the autopsies. Former New York medical examiner Dr. Michael Baden described this as highly irregular and suggested that it was driven by political motives inconsistent with the interests of science.
At various points in Department of Justice memoranda issued to approve the torture practices, close monitoring of those practices by medical professionals is described as desirable. All of these memoranda were rescinded by the Bush Administration before it left office, and Barack Obama’s attorney general openly described some of the techniques approved in them as “torture.” Curiously, however, none of these memoranda even examined the possibility that the practice of medical monitoring and collection of data constituted medical experimentation on human subjects forbidden by both United States and international law. The Physicians for Human Rights report concludes that the Bush-era practices “contravened well-established legal and ethical codes, that, had they been enforced, should have protected prisoners against human experimentation.”
It appears from the data collected in the PHR report that the CIA was using health-care professionals to collect data for two purposes: to try to hone its torture techniques, and to create a “good faith” defense against criminal charges, following the advice of the Justice Department. This is not just highly unethical conduct. It is a serious crime in its own right, which may well justify jail time for the medical professionals involved. The PHR report points to the extraordinary steps taken quietly by the Bush Administration to amend the War Crimes Act in 2006, following their sudden realization that government figures faced a real prospect of prosecution for criminal misconduct undertaken on high-level instructions.
Jay Bybee and John Yoo wrote memoranda designed to help create a “good faith” defense to potential torture charges against interrogators. They focused on the practice of collecting medical data as torture sessions progressed as an essential element which would establish such “good faith.” In one of the memos, Yoo wrote,
a defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience.
An internal Justice Department probe concluded in 2008 and released earlier this year shows that then-head of the Criminal Division Michael Chertoff accepted this reasoning, stating to John Yoo
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.
An April 28, 2003 memorandum (PDF) from CIA General Counsel Scott Muller shows that this advice was implemented through procedural rules under which medical observation was required and medical data was routinely collected as torture techniques were applied.
The PHR report prompts questions about the work carried out by health care professionals and particularly by psychologists working with the intelligence community at the black sites and at Guantánamo. What sort of information was being collected at locations like Camp No? Were audio or visual recording systems installed for this purpose? What records exist? And why has this information been withheld from independent investigators looking into accusations of torture and deaths in detention?
The established practice of medical experimentation and data collection during torture sessions means that a substantial pool of information about these sessions exists, as do eye-witnesses–the collaborating health-care professionals. To the extent it figures in the pending legal cases of persons subject to these procedures, this information must be disclosed for court use. But it also constitutes an invaluable source of data about the entire program, which must be carefully preserved.