The current issue of the Journal of the American Medical Association carries an important new study (sub only) by Len Rubenstein and Brigadier General Stephen Xenakis, probing more deeply into the role that physicians working for the CIA played in torturing and abusing prisoners. The evidence that CIA doctors were engaged in the torture process was marshaled in a prior report by Physicians for Human Rights. Evidence subsequently emerged suggesting that they had criminally experimented on human subjects, as they sought to calibrate torture sessions to the guidelines established by Jay Bybee, John Yoo, and Stephen Bradbury–guidelines since rescinded and acknowledged by the Justice Department to constitute torture practices. But Rubenstein and Xenakis focus on a document released (PDF) by the Obama Administration, which shows that the CIA’s Office of Medical Services (“OMS”) provided guidance that facilitated torture and mistreatment.
Enhanced interrogation methods were applied in escalating fashion. Interrogators typically began by removing the detainee’s clothes, limiting food, and depriving him of sleep through the use of stress positions. If this failed to produce intelligence, interrogators introduced “corrective” and “coercive” methods, including facial and abdominal slaps, dousing with cold water, stress positions and wall standing, confinement in a small or large box, and “walling” (throwing a detainee against a wall up to 20-30 times). If the detainee still did not provide information, interrogators could use waterboarding (simulated drowning). These methods have been recognized to constitute torture under international and domestic law by inflicting severe physical or mental pain or anguish on a person.
According to OMS guidelines, physicians and other health care professionals performed on-site medical evaluations before and during interrogation, and waterboarding required the presence of a physician. Exercising these functions violated the ethical standard that physicians may never use their medical skills to facilitate torture or be present when torture is taking place. In 2003, partially in response to a CIA Inspector General investigation that questioned the use of enhanced interrogation methods and criticized the agency’s failure to consult with OMS about the risks to detainees of waterboarding, OMS physicians assumed another role, providing opinions to the agency and lawyers whether the techniques used would be expected to cause severe pain or suffering and thus constitute torture. Physicians provided opinions on potential health effects of enhanced interrogation, described medical “limitations” on their use, and listed references. The OMS analysis is summarized in part in an appendix to OMS guidelines issued in May 2004, which are reproduced in the TABLE (these were slightly revised in December 2004). In some cases, the guidelines also urged documentation of the effects of enhanced interrogations on detainees. The guidelines recognized that waterboarding creates risks of drowning, hypothermia, aspiration pneumonia, or laryngospasm; cramped confinement could result in deep vein thrombosis; and death could result from lengthy exposure to cold water.
The duplicity in this affair is amazingly circular. The Justice Department’s torture lawyers relied on the CIA’s torture doctors for the conclusion that specific techniques did not produce “severe pain” that ran afoul of the criminal law prohibition on torture; the CIA doctors relied on the Justice Department lawyers for the same conclusion. It looks like a compact, and an alert prosecutor would no doubt call it a joint criminal enterprise: I’ll shield you, and you’ll shield me. But the conduct of the OMS involves laughable games with the ethics requirements. The obligation to “do no harm,” the physician’s foremost ethical injunction, is converted by OMS into an injunction to avoid “severe pain.” In other words, in the OMS’s book, anything that falls one iota short of prosecutable torture, including cruel, inhuman, and degrading treatment (which is also prosecutable) is just fine. It’s hard to see at this point whose behavior was the more ethically odious, though evidence suggests that both engaged in professional misconduct so egregious as to warrant formal disciplinary proceedings.
The table that Rubenstein and Xenakis have prepared offers an illuminating glimpse into the potentially criminal sophistry of the CIA torture doctors. It shows that OMS:
purported to subject some techniques to “medical limitations,” but those claimed limitations imposed no constraint on use of torture, e.g., allowing weight loss up to serious malnutrition, noise up to level of permanent hearing damage, exposure to cold water right up to development of hypothermia, shackling in upright sitting or horizontal position for 48 hours (and longer with medical monitoring);
placed no medical limitations at all on the use of isolation, hooding, walling, cramped confinement or stress positions except in some cases avoidance of aggravation of pre-existing injury;
ignored medical and other literature on effects of these forms of torture, and instead cited sources like NIH web site, wilderness manuals and WHO guidelines.
recognized dangers of certain enhanced methods but nevertheless approved them, e.g., that waterboarding risks drowning, aspiration pneumonia, and laryngospasm; sleep deprivation can degrade cognitive performance, lead to visual disturbances and reduce immune competence acutely; prolonged standing can induce dependent edeme, increased risk for DVT, cellulitis.
The positions that OMS took were professionally incompetent because they were clearly completely at odds with the established medical literature. Thus the OMS doctors, like the OLC lawyers, gave their bosses exactly what was expected of them: a green light to torture.
The torture doctors expect to have their identities protected, and thus to escape the natural consequences of their gross professional misconduct. This helps us understand why senior figures in the intelligence community are today ferociously pressuring the Justice Department to criminalize anyone who attempts to discover the identities of those involved. They assert that those identified would be terrorist targets. In fact, those who are unmasked face likely professional ethics proceedings, as well as the long-term risk of criminal prosecution, particularly if they ever venture beyond the borders of the United States.
