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Monday, June 07, 2010

Paging Dr. Mengele: Medical Experimentation and the CIA Detainees

[Cross-Posted on Balkinization.]

It had seemed, at least until late last week, that intervening events had taken most of the attention away from one of the most significant controversies of President Obama’s first year in office—whether senior Bush Administration officials should be investigated for their role in the documented torture and other abusive treatment of non-citizens detained as terrorism suspects. President Bush himself may have rekindled the controversy with his surprisingly candid comments about waterboarding, but that pales in comparison to the implications of a new report, released this morning by Physicians for Human Rights (PHR) (and available through this link).

In the report, titled “Experiments in Torture: Evidence of Human Subject Research and Experimentation in the 'Enhanced' Interrogation Program,” PHR marshals strong evidence that doctors working for the U.S. government conducted “illegal and unethical” human experimentation and research on detainees in CIA custody. In particular, the report concludes that

Health professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity.

In other words, because medical professionals were intimately involved in the EIT program, and appear to have used prior experiences with individual detainees to suggest ways of increasing the effectiveness of the techniques going forward, these individuals were effectively conducting the very kind of research and experimentation that ethical codes, federal regulations, and international law all prohibit.

The Report is quite clear that many of its conclusions are based on inferences and other circumstantial evidence (much of the crucial information remains classified), and avoids reaching final conclusions as to whether any of these codes, rules, or laws were broken. Nevertheless, as the Report concludes, "a comprehensive federal investigation is required to answer the questions this evidence raises."

Regardless of whether the EITs themselves were violations of federal or international law (on this point, at least, I don't imagine I'll convince anyone of a view distinct from that which they already have), there seems far less room for debate over the propriety of human subject research and experimentation. The so-called "Common Rule," which applies to the CIA and the Department of Defense (along with a number of other major federal agencies), bars such research without the consent of the subject. And the United States was not just instrumental in creating the body of international law that prohibits the practice; it was a U.S. military commission at Nuremberg that tried 23 Nazi officials (20 of them doctors) in the "Doctors' Trial" after World War II, convicting 16 of the defendants (and executing seven) for war crimes and crimes against humanity arising out of their involvement in medical experimentation on, inter alia, concentration camp internees. In the process, the Nuremberg Military Tribunal (NMT) articulated what has since become known as the "Nuremberg Code"--10 principles to set the permissible boundaries of human subject research. We, in other words, set the precedent that such conduct by medical professionals is more than just unethical and illegal, but is in fact a war crime. [And then we watered down the War Crimes Act in the Military Commissions Act of 2006, but I digress . . .]

Given that so much of the critical information remains classified (including, as the PHR Report notes, the unclear role of OLC with regard to the medical professionals), it would be imprudent to speculate on what specifically happened, or who may actually be liable. The larger point, though, is that these charges only reinvigorate a point that I'm neither the first nor last to make: We still don't know what we don't know about the EITs, about who was behind them, and about how they were implemented. Thus, this Report is not about the well-worn debate over whether or not torture was committed, or, alternatively, whether individual techniques constituted "torture." Regardless of the legality of the individual interrogation techniques, any non-consensual medical experimentation would have been against both federal and international law. And as PHR's Report concludes,

The use of health professionals to monitor intentionally harmful interrogation techniques places them in the service of national security objectives which are in conflict with the interests of those who they are monitoring. The result has been a co-opting of health professionals by the national security apparatus and a violation of the highest medical admonition to “do no harm.” Until the questions examined in this paper are answered and, if ethical violations or crimes were committed, those responsible are held accountable, the misuse of medical and scientific expertise for expedient and non-therapeutic goals jeopardizes the ethical integrity of the profession, and the public trust in the healing professions risks being seriously compromised.

Posted by Steve Vladeck on June 7, 2010 at 12:01 PM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink


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Contrary to the above, the CIA has not adopted 45 CFR 46. It is only weakly bound to follow DHHS guidelines (the Common Rule) through Executive Order 12333:

"2.10 Human Experimentation. No element of the Intelligence Community shall sponsor, contract for, or conduct
research on human subjects except in accordance with guidelines issued by the Department of Health and Human
Services. The subject's informed consent shall be documented as required by those guidelines."

However, the last sentence of EO 12333 says:

"(c) This order is intended only to improve the internal management of the executive branch and is not intended to,
and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party
against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other

On its face "any party" also means such entities as OHRP. Therefore, CIA would seem to have a strong defense against any attempt to investigate what happened. Furthermore, information that would be valuable in distinguishing whether CIA was doing quality improvement or experiment is probably classified and hard to get. 45 CFR 46 is probably not available as a remedy. PHR could have done a little more research.

Although Justice O'Connor expressed some confidence Nuremberg Code can be a source of causes of action, and international law scholars argue it is US law, the majority opinion is that it is not. Arguments that ICCPR art 7 would apply will not float. American courts consistently interpret the ICPPR in line with US RUDs, that it does not create causes of action in the US. Therefore, there is no body of domestic law that clearly prohibits the CIA from doing this research, if it is research (except such laws against torture as can be said to exist now).

Posted by: John Lunstroth | Jun 14, 2010 1:29:14 PM


Yes, it was "we" who essentially created the Nuremberg Code, but it is also quite plain from the history of human subjects research in the U.S. prior to and contemporaneous with the Nazi atrocities that in point of fact "we" flouted a great number of the Code's provisions. This is unsurprising when it is understood that the nature of the Code was an ex post facto document created to impose liability on the Nazis. Simply put, it was intended for them, not for us, and I have argued that this fact has had devastating consequences in the 60 years since, in which the violations of human subjects' rights in clinical research in the US is unfortunately vast and deep (contrary to most people's understanding, Tuskegee was merely one among a disturbingly large number of grievously unethical protocols).

Finally, the unfortunate hand of the US military in a great many of these violations jumps out from this history, sadly (just skim the voluminous documentation compiled by ACHRE, for example, or read Allen Hornblum's tour de force on the experiments on Holmesburg Prison, or google "MK ULTRA"). Especially as to prisoners of war/enemy combatants, I am partial to Goodman, McElligot, and Marks's theory that the process of performing research on their bodies is the process of rendering unuseful bodies useful to the state. While this rubric does not adequately characterize the totality of unethical human subjects research in the US during the 20th (and 21st?) centuries, it does seem to account for a disturbingly large proportion of it.

None of the above is meant to suggest that in fact US sponsored agents perpetrated unethical research on POWs/enemy combatants, but rather than when contextualized in the historiography on unethical human subjects research in the U.S., I would not be remotely surprised if it turned out to be a reasonably accurate charge.

Posted by: Daniel S. Goldberg | Jun 7, 2010 1:53:36 PM

Gitmo is closed, Obama promised.

Posted by: anon | Jun 7, 2010 12:34:03 PM

The PHR report appears to confirm the detailed accounts given in Dr. Steven H. Miles' book, Oath Betrayed: America's Torture Doctors (Berkeley, CA: University of California Press, 2nd ed., 2009).

Posted by: Patrick S. O'Donnell | Jun 7, 2010 1:13:40 AM

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