U.S. Military Physicians Who Torture: How to Judge, and By Whom?
By Bruce Patsner, M.D., J.D.
bpatsner@central.uh.edu
Medical ethics is front page news once again. In a widely publicized report in The New
York Times,1 the U.S. Central Intelligence Agency (CIA) announced that it would be
closing secret overseas prisons for terror suspects at which approximately thirty prisoners
were subject to “enhanced” interrogation techniques, allegedly under medical
supervision. A longer companion piece which appeared in this month’s New York Review
of Books2 extensively quoted from a confidential International Committee of the Red
Cross (ICRC) Report3 apparently leaked to the press on the treatment of a small group of
“high value” detainees in CIA custody who were subject to what the Red Cross felt was
torture.
One of the most controversial and disturbing aspects of the ICRC Report4 concerned the
role of health care professionals in the enhanced interrogation process: was the conduct
of the health care professionals that of simply monitoring to protect the life of the person
being interrogated, or were the medical personnel more actively involved, i.e. were they
facilitators, or even more active participants in controversial techniques such as waterboarding? More importantly, who and what are these medical professionals? Some
medical ethicists and legal academics immediately seized on the ICRC Report to
proclaim that the Report’s findings were “a disturbing confirmation of our worst fears
about medical professionals’ involvement in directing and modulating cruel treatment
and torture.”5
Yet, it isn’t clear what is meant by “medical professionals.” Are these former military
personnel hired by the CIA or enlisted personnel? According to The New York Times, the
Red Cross Report does not indicate whether the medical workers at the CIA sites who
participated in torture or enhanced interrogations were physicians, other health
professionals, or both.6 From a medical ethics point of view, it does make a difference.
What is clear from reading the Report is that at some level the medical personnel were
primarily “serving the interrogation process and not the patient,”7 and that all of the
instances in which medical workers had allegedly condoned or participated in torture
were reported only by the detainees.8
1
Scott Shane, C.I.A. to Close Secret Prisons for Terror Suspects, THE NEW YORK TIMES, April 10, 2009, at
A1 [hereafter Shane NYT article].
2
Mark Danner, US Torture: Voices from the Black Sites, THE NEW YORK REVIEW OF BOOKS, April 9,
2009, p. 69-77 [hereafter NYROB}.
3
THE INTERNATIONAL COMMITTEE OF THE RED CROSS, ICRC REPORT ON THE TREATMENT OF FOURTEEN
“HIGH VALUE” DETAINEES IN CIA CUSTODY, FEBRUARY 2007 [hereafter ICRC Report].
4
Id.
5
Scott Shane, Report Outlines Medical Workers’ Role in Torture, THE NEW YORK TIMES, April 7, 2009, at
A1, available at http:www.nytimes.com/2009/04/07/world/07/detain.html?_r=1&hp=&pagewanted=print
(last accessed April 7, 2009), quoting
6
Id.
7
ICRC Report, supra note 3.
8
Id.
Previous Reporting
The question of possible physician (military or civilian) participation in U.S. military
enhanced interrogation techniques is not a new one. Both Lancet9 and The New England
Journal of Medicine10 have carried reports as far back as 2004 on the possible
participation of military physicians in enhanced interrogation techniques or torture of
suspected terrorists at U.S. military or CIA facilities. Reporting by some of these
individuals has continued to present day11 even though the Obama administration has
already indicated that it is planning to shutter the interrogation facility at Guantanamo
Bay12 and that it rejects the Bush administration’s policy of enhanced interrogation. The
shift in positions by the new administration in Washington, D.C., notwithstanding, the
question of what to do about possible health professional participation torture will have to
be addressed.
The Department of Justice Guidelines Not a Complete Shield for Military Physicians
Newly-appointed CIA Director Leon Panetta may have announced that CIA officers who
worked in the program “should not be investigated, let alone punished because the Justice
Department under President George W. Bush had declared their actions legal,”13 but it is
not clear who is being protected and what exactly such a Department of Justice shield
would protect against: civil prosecution, criminal prosecution, or both?
Even if physician conduct conforming with procedural interrogation technique guidelines
drawn up by the Department of Justice is protected from civil and criminal liability, such
protection may not be worth anything if either medical professional societies or, more
importantly, individual state medical boards elect to pursue disciplinary action against
individual physicians. The New York Times has already seen this possible gap in the
proffered government protection of physician conduct, calling for a full-scale
investigation into abusive practices to determine the role of physicians in torture, with
resulting loss of medical licenses if warranted.14
Another possible avenue of investigation against which Director Panetta’s policy will
offer little or no protection against is that of prosecution in a non-U.S. court. Under the
doctrine known as Universal Justice, Spanish law gives its courts jurisdiction beyond its
national borders in cases of torture or war crimes, as recently reported in The Associated
9
Steven H. Miles, Abu Ghraib: its legacy for military medicine, 364 LANCET 725 (2004).
M. Gregg Bloche and Jonathan H. Marks, Doctors and Interrogators at Guantanamo Bay, 353 N. ENGL.
J. MED. 6 (2005).
11
Steven H. Miles, Medical ethics and torture: revising the Declaration of Tokyo, 373 LANCET 344 (2009).
12
Fox News, Obama to Issue Order Closing Gitmo during First Week in Office, January 12, 2009,
available at http://www.foxnews.com/politics/2009/01/12/obama-issue-order-closing-gitmo-week-office
(last accessed April 16, 2009).
13
Shane NYT Article, supra note 1.
14
Editorial, Medically Assisted Torture, THE NEW YORK TIMES, April 9, 2009, at A22.
10
Press.15 Military physicians alleged to have participated in torture would, under this
doctrine, be vulnerable to international arrest warrants and extradition to a foreign
country for trial;16 at least one of Spain’s top investigative magistrates has already opened
an investigation into alleged torture of suspects at Guantanamo Bay.17 There is also the
possibility that such personnel might be subject to proceedings in the World Court in
Prague or The Hague.
Medical Ethics vs. Military Medical Ethics
Physicians’ claims that they were just following orders did not work at Nuernberg,18 and
should not work now. There is, at least on the surface, no difference in the code of
medical ethics which physicians must follow, whether they are military or civilians.19
This position has been emphasized by the American Medical Association (AMA) as
well.20 Importantly, the relevant AMA Opinion Paper directly states both that (1)
“[p]hysicians must neither conduct nor directly participate in an interrogation, because a
role as a physician-interrogator undermines the physician’s role as healer and thereby
erodes trust in the individual…and the medical profession”21; and (2) “[p]hysicians must
not monitor interrogations with the intention of intervening in the process, because this
constitutes direct participation in interrogation.”22
It would thus appear that the only legitimate role for physicians in military interrogations
that would meet AMA criteria is the following: “[p]hysicians may participate in
developing effective interrogation strategies for general training purposes. These
strategies must not threaten or cause physical injury or mental suffering and must be
humane and respect the rights of individuals.”23 This position statement appears to be at
odds with the argument made by some previous administration officials that certain types
of physician indirect participation or monitoring during the interrogation process is not a
violation of established principles of medical ethics.
Unlike the scenario in the film The General’s Daughter24 where a senior officer tells the
investigator that there is “the right way, the wrong way, and the Army way,” military
15
The Associated Press, Spain rules out torture probe of U.S. officials. Lawyers had alleged the so-called
‘Bush
Six’
sanctioned
abuse
at
Gitmo,
April
16,
2009,
available
at
http://www.msnbc.msn.com/id/30241123/print/1/displaymode/1098/ (last accessed April 16, 2009).
16
Id.
17
Daniel Wools, Spanish judge opens Guantanamo investigation, available at http://www.jurist.
law.pitt/edu/forumy/2009/04/second-bybee-memo-smoking-gun.php (last accessed April 29, 2009).
18
U.S. GOVERNMENT PRINTING OFFICE 1946-1949, TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG
MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO.10, 160-63.
19
U.S. GOVERNMENT PRINTING OFFICE 1946-1949, TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG
MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO.10, 181-83.
20
American Medical Association, Council on Ethical and Judicial Affairs: Physician participation in
interrogation (Opinion 4-I-06), available at http://www.ama.assn.org/ama1/pub/upload/mm/475/
cejo4i06.doc (last accessed March 18, 2008).
21
Id.
22
Id.
23
Id.
24
THE GENERAL’S DAUGHTER (Paramount Pictures 1999).
physicians do not operate under a separate code of medical ethics different from the one
their civilian counterparts must adhere to. This statement is true whether the physicians
involved are members of the Armed Forces, or are working outside the military for
intelligence agencies such as NSA or the CIA; the ethical standard for military physicians
is the same as that for civilian physicians. Faced with the prospect of participating in
torture, physicians must refuse. This fiduciary duty of physicians in a treatment setting is
independent of all other considerations.25
In a sense, the situation is no different than the controversy about physician participate in
state-ordered execution of criminals by lethal injection.26 Unlike the civil situation where
a state may request physician participation in an execution by lethal injection, however,
the state cannot “order” a physician to participate27 and medical professional societies
and the AMA have been unanimous in their condemnation of physician participation in
such procedures whether voluntary or not.28 In the military, it is possible that personnel
who are physicians might be ordered to participate in enhanced interrogation sessions by
monitoring the health of the person being interrogated to ensure that their life is not
endangered by the techniques being used. Although there is no evidence in any of the
published literature or news reporting that this is in fact the case, it is possible that
military physicians could be placed in such a situation and be faced with the choice of
either jeopardizing their license to practice medicine or court-martial for disobeying a
direct order. At least under the current administration that scenario seems highly unlikely.
Health Law Perspectives (May 2009), available at:
http://www.law.uh.edu/healthlaw/perspectives/homepage.asp
25
Carl H. Coleman, Jerry A. Menikoff, Jesse A. Goldner and Nancy Neveloff Dubler, The Ethics and
Regulation of Research with Human Subjects (2005).
26
Bruce Patsner, Baze v. Rees, Executionby Lethal Injection, and the Role of the Medical Profession,
(January 2008), available at: http://www.law.uh.edu/healthlaw/perspectives/homepage.asp (last accessed
April 16, 2009).
27
Id.
28
Id.